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Full text of "Sourcebook on the Americans with Disabilities Act"

Sourcebook on the 



Americans with 








KF3739 

.C3 

1997 



^ 



RSC 



Published by the Ohio Rehabilitation Services Commission 

...promoting employment of people with disabilities 



A Sourcebook on the 
Americans with Disabilities Act 

Compiled and edited by David Cameron and Trudy F. Sharp 




Published in 1997 by the Ohio Rehabilitation Services Commission, 

400 East Campus View Boulevard, Columbus, Ohio 43235-4604 

This publication is available free from the publisher in print or on audiocassette. 

No charge may be levied by any other entity which may disemminate it. 



The mission of the Ohio Rehabilitation Services Commission, 

a state/federal program, is to work in partnership with people with disabilities 

to assist them to achieve full community participation through employment 

and independent living opportunities. 



The Ohio Rehabilitation Services Commission does not discriminate on the basis of 
age, color, creed, national origin, race, sex or type of disability. 



Acknowledgments 

The following people assisted in proofreading and editing: 
Valerie K. Snavely, S. Louise Czatt and Linda Belew 

The following people assisted with development of original articles which are 

now compiled in this publication: Karia Lortz, Maureen Fitzgerald, David Leedy, 

Janet Kohn, Ben Hall, Gale Gross, Rae Lyie, Ken Campbell and Geoff Nishi 



Table of Contents 



Introduction 1 

TITLE I: EMPLOYMENT 3 

Highlights 4 

WHO ISCOVERED? 5 

• Who is an ennployer? 5 

• Who is an employee? 5 

• How is disability defined? 5 

• Who is a qualified person? 6 

Diagnosis doesn't equal disability 7 

Small employer covered because of consolidation with other firm 8 

U.S. compan ies abroad 9 

Local placement staff may be the resource you need 9 

Dos and Don'ts 10 

INCREASING COMPANY PROFIT 11 

People with disabilities represent the greatest untapped labor pool 1 1 

Survey says . . . Corporate acceptance exists 12 

Ohio group can take your calls 12 

TAX INCENTIVES 

• Small business tax credit 13 

• Barrier removal deduction 13 

• Combining the two tax incentives 13 

• Targeted tax credit available 1 3 

Federal incentives encourage hiring of people with retardation 14 

Survey says ... Employers satisfied with mentally disabled workers 14 

MEDICAL EXAMS AND INQUIRIES 

Employers must review process used to screen job applicants 1 5 

Use and timing of applicant or employee medical inquiries 16 

Pre-hire screening for back problems can comply with ADA 17 

DEFINING ESSENTIAL FUNCTIONS 

Identification of essential tasks can protect employer, employee 18 

REASONABLE ACCOMMODATION 

• When is it required? 21 

• When is it not required? 21 

A sample accommodation policy 22 

The basic four-step process 22 

Two examples 24 

Hook up to JAN: the Job Accommodation Network 25 

The issue of absenteeism 26 

Do co-workers have right to know of reasonable accommodation? 26 

Good faith 29 

HIV accommodations also support other employees 30 

Sears is standing up for the act 31 

IN THE BLINK OF AN EYE 

What business leaders still don't understand 32 






III 




DIRECT THREAT 34 

WORKPLACE CONDUCT 

Discipline of workers who break conduct rules discussed 37 

Must workers who threaten violence be accommodated? 37 

SUBSTANCE ABUSE 

What you need to know about ADA and drug and alcohol abuse 38 

MENTAL HEALTH 

Paranoia surrounding myths of mental illness unfounded 40 

ENFORCEMENT 

EEOC invesigates discrimination, courts wield power 41 

Mediation is cheaper, faster than going to court 42 

IN THE COURTS 6, 9, 15, 1 8, 28, 34, 36, 39, 41 

RESOURCES 13, 17, 20, 25, 27, 30, 38 




COORDINATION WITH OTHER LAWS 



45 



WORKERS COMPENSATION 

When is a disability not a disability? 46 

WELLNESS PLANS 

Plans tied to insurance programs could run afoul of the ADA 48 

FAMILY & MEDICAL LEAVE ACT 

FMLA and ADA address disability but differ in purpose, protection 50 

FMLA: Conflict or coordination 51 

Retirement and disability plans need not be equal 52 

IN THE COURTS 48 

RESOURCES 47, 51 



TITLE II: GOVERNMENT SERVICES 



53 




Highlights 54 

TITLE II UNFUNDED? NOT! 55 

• Federal funds can be found 55 

Financing curb ramps 56 

Fire stations required to make programs accessible 56 

DIGNITY AND THE ADA 

The hand that opens the window 57 

How to get professors to provide academic accommodations 59 

Use of fragrances not barred 60 

IN THE COURTS 58 

RESOURCES 56, 60 



IV 



TITLE III: PUBLIC ACCOMODATIONS 



61 



Highlights 62 

AUXILIARY AIDS AND SERVICES 

Retailers must do more than offer assistance 63 

Health care provider obligated to patron with deafness 63 

Who's responsible for accessibility — landlord or tenant? 64 

Film captioning not required 65 

Ohio requires access to church 65 

No need to alter inventories 65 

JUST WHO HAS THE DISABILITY? 67 

OF LAWS & LAWYERS 68 

IN THE COURTS 66 

RESOURCES 65 

ACCESSIBILITY 69 

Highlights 70 

BARRIER REMOVAL & PROGRAM ACCESS 

True access is more than just getting through the door 71 

Choosing a consultant? You'd better shop around 71 

Beware of inspection scams 72 

Sign language interpreters can aid communication flow 72 

When hearing aids aren't enough, people may need auxiliary aids 73 

Alternative formats needed to communicate when vision limited 75 

Specs for children's facilities 76 

Telecommunications Reform Act addresses disability access 78 

RESOURCES 17, 78 

RESOURCE RECAP 79 

Great Lakes Disability and Business Technical Assistance Center 80 

Ohio Rehabilitation Services Commission 80 

Resources featured in the Sourcebook 81 

Newsletters 84 

INDEX 85 

About the editors 90 






V 



Introduction 



The ADA Quarterly's greatest hits 

By David Cameron, ADA coordinator, and Trudy Sharp, public information officer 

In the summer of 1 993 the Americans with Disabilities Act of 1 990 (ADA) was in its 
infancy. Though on the books, many of its more significant parts were yet to come into 
effect, so its overall impact on our society was largely unknown. Out of that uncer- 
tainty, the Ohio Rehabilitation Services Commission created the "ADA Quarterly" and 
began inserting it into several issues a year of our NewsNet magazine. More than 1 50 
articles about various aspects of the ADA have appeared in 14-plus issues. Good info 
but a bit unwieldy. 

Thus is born A Sourcebook on the Americans with Disabilities Act. Containing a 
compilation of ADA articles from RSC publications, it's intended as a "greatest hits" 
edition. Or to continue the musical analogy, a "best of" the Quarterly's issues, plus a 
few unreleased tracks. Articles have been reorganized by subject and indexed to make 
it easier to find just what you need. (After all, we're committed to accessibility.) 

RSC's ADA Quarterly issues have all been collections of the best and most pertinent 
information that was available at the time of publication. None of them attempted to 
be comprehensive on any subject. Same for this book. You will notice that the first 
chapter, Title I: Employment, is significantly dominant. Do not take this as an unin- 
tended judgment on the relative importance of one portion of the ADA over another. It 
is merely a reflection of RSC's own purpose: to promote the employment of people 
with disabilities. RSC has no power to enforce compliance with the ADA - that power 
exists only through the U.S. Equal Employment Opportunity Commission (Title I), the 
U.S. Department of justice (Titles II and III) and, of course, the court system. 

You needn't be an ADA expert, a disability expert or a lawyer to utilize this book. We 
attempt to educate, not to provide legal advice. In fact, we have included some ar- 
ticles that are philosophical in nature - attempts to explain what having a disability 
means in this society and why the law is necessary to protect our civil rights. Yes, the 
ADA collectively protects all of us. There are 49 million people with disabilities in 
America and any one of us could join this population "in the blink of an eye," as the 
article on page 32 states. As for societal benefits, people with disabilities work and pay 
taxes and contribute to the diversity of our communities. The cost of rehabilitating 
someone and helping that person find a job is far less than the price of public support. 

Our desire in producing this sourcebook on the ADA is to assuage any fears that em- 
ployers and communities may have about the act - to let them know they can get an- 
swers to their questions and those answers can often be simple and inexpensive. We 
also hope that people with disabilities will use this book to understand their rights and 
exercise their opportunities for independence. This publication is only one of many 
resources that are readily available in print, on video, over the phone or in person 
from people who are well-versed in the particulars of the ADA and disability issues. 
We have included contact information for many of them throughout these pages. 

If you still have questions after reviewing this material, Dave Cameron will be happy 
to take your calls. Call toll-free in Ohio (800) 282-4536 voice/TTY and ask for ext. 
1232 voice or ext. 1470 TTY Outside Ohio and in Columbus, call (614) 438-1232 
voice or (614) 438-1470 TTY 



.^^ 



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w 



Title I: 

Employment 



IWftOWgNIT 



TITLE I 



What is the ADA? 




The Americans with Disabilities Act is an equal opportunity, civi( 
It is not an employment preference law. 

Who is protected? 

Any person who has an impairment that substantially limits a major life activity (or has 
a record of such an impairment or is regarded as having such an impairment); in 
addition, the person must be otherwise qualified for a job and must be able to perform 
the essential functions of a job. 

Who must comply? 

The ADA applies to all private employers with 15 or more employees and to all public 
employers regardless of size. 

What is required? 

Employers: 

• may not discriminate against a person with a disability in any terms of employment. 

• cannot ask about an applicant's health or disability (but can ask about his or her 
ability to perform a job). 

• must try to provide reasonable accommodation when needed to allow a person 
with a disability to apply for or perform in a job. 

What is not required? 

Employers are not required to: 

• give preference to persons with disabilities. 

• provide a reasonable accommodation that will cause an undue hardship on an 
organization. 

• hire or keep a person who is not able to perform the job. 

• hire or keep a person whose disability would cause a direct threat to the health or 
safety of the individual or to coworkers. 

What is a reasonable accommodation? 

It is any modification to a job - including to a job site, the working conditions, the 
manner in which a job is performed, or even the hours - that will permit a person with 
a disability to do that job. 

What is an undue hardship? 

It is any accommodation that would be unduly expensive or disruptive or that would 
fundamentally alter the nature or operation of a business. 



4 



Who is Covered? 



Much as we might like to avoid all the intricacies of 
law, it's the details that make it work. This article looks at 
the details of the definitions of employer, disability and 
qualified person with a disability. 

Who is an employer? 

The definition of employer includes "agents" of the 
employer, such as managers, supervisors, foremen or 
others who act for the employer, such as agencies used to 
conduct background checks on candidates. Therefore, 
the employer is responsible for actions of such parties 
that may violate the law. 

Which employers does ADA affect? 

• private employers with 1 5 employees or more - this 
means 15 or more employees (including part-time) 
working 20 or more calendar weeks in the current 
(or preceding) calendar year 

• state and local government c \\^. 

• employment agencies ^s~\ 





• labor unions 

• joint labor-management committees -^zr\ 

• churches - a church can require employees to be 
members of the faith 

• U.S. Congress 

Which employers ore exempt? 

• federal government agencies - they are covered by 
equivalent provisions of the Rehabilitation Act of 
1973 

• corporations wholly owned by the federal govern- 
ment - they are covered by equivalent provisions of 
the Rehabilitation Act of 1973 

• Native American tribes 

• private membership clubs if they are tax-exempt un- 
der Section 501(c) of Internal Revenue Code and not 
a labor organization 

Who is an employee? 

The law specifies that an "employee" is an individual 
who is employed by an employer. This is not, despite 
appearances, a smart-aleck definition that tells us noth- 
ing. In fact, it tells us that the law includes almost every- 
one who is in an employment relationship. It even 
includes U.S. citizens who work for American compa- 
nies, their subsidiaries, or firms controlled by Americans 
outside the United States. However, the law contains an 
exemption for any action to comply with the ADA that 
would violate the law of a foreign country where a work- 
place is located. 

How is disability defined? 

The ADA definition of disability is unlike definitions for 
workers' compensation, vocational rehabilitation, dis- 



abled veterans and the like. That is because it is more 
about discrimination than about disability. Accordingly, 
a person with a disability is someone who fits into any of 
these categories: 

• has a physical or mental impairment that substan- 
tially limits one or more major life activity; 

• has a record of such an impairment; OR 

• is regarded as having such an impairment. 

Physical or mental impairment 

This is the obvious part, the one we expect. Physical 
impairment means any "physiological disorder, or condi- 
tion, cosmetic disfigurement, or anatomical loss affecting 
one or more" body systems. Mental impairment means 
"any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or men- 
tal illness, and specific learning disabilities." There is no 
exhaustive list of diseases or conditions that are defined 
as disabilities. 

Examples of major life activities are walking, hearing, 
caring for oneself and working. There is no definitive list 
of major life activities. 

A person is considered substantially limited if he or she 
is unable to perform or is significantly limited in the abil- 
ity to perform a major life activity when compared to an 
average person in the general population. 

A person is considered to have a disability regardless of 
whether he or she takes medication or uses an assistive 
device that alleviates the condition's effect. 

EXAMPLE: A person whose seizure disorder is con- 
trolled by medication or a person who uses a prosthetic 
leg will be protected from employment discrimination 
even if the effect of the impairment is greatly reduced. 

Record of impairment 

This applies to a person who has had, for example, 
cancer that is cured, controlled or in remission. This cat- 
egory also includes people with a history of mental ill- 
ness and people who were misclassified or misdiagnosed 
as having a disability. Even if there is no current effect 
caused by the former condition, a person with a history 
of disability is protected from any discriminatory employ- 
ment action. 

EXAMPLE: A woman had colon cancer with subse- 
quent surgical resection in 1975 and has had no recur- 
rence; she has no residuals from the experience and thus 
no impairment whatsoever. She is protected from em- 
ployment discrimination. 

Regarded as having a disability 

This part addresses society's myths and stereotypes 
about disability. It recognizes that attitudes about dis- 
ability have the potential to be as handicapping as the 
limitations that result from actual impairments. It extends 
the protection of the law to those people who have no 



impairment but are treated as though they do. 

EXAMPLE: A man sustained serious burns in an auto 
accident; although he has completely recovered, he still 
bears significant facial scars. He is protected from em- 
ployment discrimination. 

Exceptions 

Regardless of what you may think about any of the fol- 
lowing conditions, they are, by definition, not consid- 
ered disabilities for the purposes of the ADA: 

• current illegal use of drugs; 

• homosexuality, bisexuality; 

• transvestism, transsexualism, pedophilia, exhibition- 
ism, voyeurism, gender identity disorders not result- 
ing from physical impairments; 

• other sexual behavior disorders; 

• compulsive gambling, kleptomania, pyromania; and 

• psychoactive substance use disorders resulting from 
current illegal use of drugs. 

Temporary conditions 

Temporary, non-chronic impairments that last for a 
short time and have little or no long-term impact usually 
are not disabilities. 

EXAMPLES: Broken limbs, sprains, concussions, ap- 
pendicitis, pregnancy, common colds or flu ordinarily 
would not be disabilities. 

Who is a qualified person? 

Contrary to common misunderstanding, there is more 
to ADA protection than having a disability. The ADA is 
not an employment law nor does it give preference to 
people with disabilities. These two additional criteria 
also must be met for the ADA to apply: 

• the person meets the employer's qualifications; and 

• can perform the essential functions of the job. 

Qualifications 

The employer decides what qualifications are neces- 
sary for a job, including skills, experience, education, 
certifications, licenses and any other job-related require- 
ments. A person with a disability must possess these 
qualifications for the ADA to apply. 

Performance 

Each job has "essential functions," which are its core 
duties and the reason the job exists, as well as "marginal 
functions." This latter criterion is about a person's ability 
to actually perform the essential ones, in the language of 
the law, either "with or without" accommodation. Deter- 
mining this may require a two-step assessment: Can the 
person perform the essential functions without an accom- 
modation? If not, can the person perform them with an 
accommodation? In other words, the fact that an indi- 
vidual needs an accommodation cannot be a reason for 
determining that the person is not qualified. 

The Equal Employment Opportunity Commission, 
which enforces the employment portion of the ADA, has 
stated that when a person files a complaint about em- 



ployment discrimination it will make the following as- 
sessments in this order: 

1 . Does the person have a disability? 

2. Is the person qualified? 

3. Can the person perform the job? 

If the answer to any of these questions is no, then ADA 
protection does not apply and the investigation stops. 
- D.C. 



^CCW)Zi' 



ADA is not retroactive 

The ADA was not intended to be applied retroac- 
tively, the U.S. District Court for Kansas has ruled. 
In Aramburu v. The Boeing Company, Santiago 
Aramburu, who was dismissed by Boeing on Jan. 
29, 1992, sued under Title I, claiming that the 
company had fired him due to his work-related car- 
pal tunnel syndrome in violation of the ADA. How- 
ever, the company argued that the ADA does not 
apply retroactively to employment actions that took 
place before July 26, 1 992, the law's effective date. 

While Aramburu claimed that his ADA complaint 
should be considered because he received his 
"right to sue" letter from the U.S. Equal Employ- 
ment Opportunity Commission after July 26, 1 992, 
the court agreed with Boeing that the ADA "is a 
substantive statute, not a remedial one" and 
granted summary judgment to the company. The 
court ruled that an ADA claim could only arise for 
Aramburu if he re-applied for a job at Boeing and 
was not hired due to his disability. 

ADA Compliance Guide © 1 994 

No ADA disability - woman 
could perform various jobs 

A telephone service representative's migraine 
headaches were not a disability under the ADA, 
ruled a federal district court in Mississippi. In 
Barfield v. Bell South Telecommunications, Inc., a 
woman with migraine headaches alleged that she 
was discharged from employment in violation of 
the ADA. The court decided that the employee did 
not have a disability under the ADA because she 
did not show that the headaches prevented her 
from performing a class of jobs or a broad range of 
jobs in various classes, and she did not otherwise 
show that the headaches substantially limited at 
least one major life activity. Additionally, the 
employee's excessive absenteeism rendered her 
unqualified to perform the essential functions of the 
job. 

Disability Compliance Bulletin © 1 995 



6 



Diagnosis doesn^t s disability 

The Americans with Disabilities Act has been the law 
of the land tor six years now. It's not just a passing fash- 
ion. It's here to stay, and it is making a difference. Persis- 
tent myths, however, are causing problems - number 
one among them being "diagnosis equals disability." 

A corollary to this myth is the equally irrelevant ques- 
tion: "Is (fill in the blank) a disability?" Over and over the 
query is made by employers, service providers and indi- 
viduals with disabilities. Is diabetes a disability? Is cancer 
a disability? Is obesity a disability? 

And the answer is always the same: maybe. The defini- 
tion of disability for ADA purposes is based on function, 
not diagnosis. Here, direct from the EEOC's Technical 
Assistance Manual for Title I, is the first part of the official 
definition: 

An individual with a disability is a person who 
has a physical or mental impairment that sub- 
stantially limits one or more major life activities 
(emphasis added]. 

This qualifier is necessary because we all have diag- 
noses. I have an impairment, albeit a rather typical one, 
commonly known as myopia. (I re- 
fer to visual, not psychological, 
shortsightedness.) Eyeglasses pro- 
vide such nearly perfect correction 
that no one, including me, ever 
perceives me as having a visual 
disability. Similarly, the ADA is 
concerned with the effecf of a 
person's impairment and not the 
impairment itself. 

Nationally-syndicated columnist George Will, who has 
a child with a disability, based an entire article based on 
the misconception that diagnosis equals disability. 

Will's erroneous editorial concentrated particularly on 
character and/or personality disorders as they are defined 
in the American Psychiatric Association's Diagnostic and 
Statistical Manual of Mental Disorders. He pointed out - 
quite correctly in this instance - that numerous people 
manifest at one time or another the traits associated with 
various disorders, such as oppositional defiant disorder 
(often loses temper, often deliberately annoys people) or 
narcissistic personality disorder (boastful and pretentious, 
may assume that they do not have to wait in line) or ob- 
sessive-compulsive personality disorder (preoccupation 
with orderliness, mercilessly self-critical). He went on at 
great length in this way. 

Do these people sound familiar? Do you encounter 
them on the highway? Do they occupy the offices around 
you? Do you recognize some of these characteristics in 
yourself^ Probably, but the point that Will missed en- 
tirely is that simply exhibiting a behavior or even receiv- 
ing an official diagnosis does not make someone a person 
with a disability under the law. As a society, we cannot 
afford to perpetuate this mistaken assumption. 



Again quoting directly from the EEOC: 

An impairment is only a "disability" under the 
ADA if it substantially limits one or more major 
life activities. An individual must be unable to 
perform, or be significantly limited in the ability 
to perform, an activity compared to an average 
person in the general population. 
Walking is one example of a "major life activity" that 
an average person can perform with little or no difficulty. 
(See "How is disability defined?" on page 5.) 

EEOC offers these three factors to consider in assessing 
whether an impairment is substantially limiting: 

• its nature and severity; 

• how long it will last or is expected to last; and 

• its permanent or long-term impact, or expected im- 
pact. 

Nature and severity 

Some impairments, such as blindness, deafness, HIV 
infection or AIDS, are by their nature substantially limit- 
ing; however, many other impairments may be disabling 
for some individuals but not for others, depending on the 
impact on their activities. 




The definition ofdisobility for ADA purposes 
is based on function.... Simply exiiibiting a 
befiovior or even receiving an official diag- 
nosis does not make someone a person 
with a disability under the law. 



EXAMPLE: Cerebral palsy often significantly interferes 
with speaking, walking, and performing manual tasks. 
However, a person with very mild cerebral palsy which 
only slightly affects speech but has no impact on other 
major life activities is not considered to have a disability. 

Temporary impairments 

Non-chronic conditions that last only a few days or 
weeks and have little or no long-term impact usually are 
not disabilities. Examples of such transitory conditions 
are influenza, appendicitis and most broken bones. The 
mere fact that an individual may have required absolute 
bed rest or hospitalization for such a condition does not 
alter the transitory nature of the condition. Even the ne- 
cessity of surgery, without more, is not sufficient to raise 
a short-term condition to the level of a disability. 

Some conditions may be long-term, or potentially 
long-term, in that their duration is indefinite and un- 
knowable or is expected to be at least several months. 
Such conditions, if severe, may constitute disabilities. 

EXAMPLE: An employee who had a temporary illness 
that required exploratory surgery but was expected to re- 
cover completely in six to eight weeks did not have an 
impairment that substantially limited major life activities. 

EXAMPLE: A broken leg that heals normally within a 



7 



few months would not be a disability. But if the healing 
took significantly longer than normal and the person 
could not walk, he or she would be considered to have a 
disability during this period. Likewise a fracture that does 
not heal properly can result in a permanent, significant 
restriction in walking that might constitute a disability. 

Individual impact 

The determination of substantial limitation must always 
be made with respect to an impairment's effect on a spe- 
cific person. 

EXAMPLE: One person had worked as a receptionist- 
clerk and sustained a back injury that resulted in consid- 
erable pain. The pain permanently restricted her ability 
to walk, sit, stand, drive, care for her home and engage 
in recreational activities. Another person had worked as 
a general laborer and suffered a similar back injury, but 
was able to continue an active life, including recreational 
sports, and had obtained a new position as a security 
guard. The first person was found by a court to have a 
disability; however, a court determined that the second 
person was not significantly restricted in any major life 
activity and thus did not have a disability. 

Combined impairments 

A person may have two or more minor impairments 
which, when considered together, result in substantial 
limitation. 

EXAMPLE: A woman has mild arthritis in her wrists and 
hands and mild osteoporosis, neither of which substan- 
tially limits a major life activity. In combination, how- 
ever, these impairments significantly restrict her ability to 
lift and to perform manual tasks. She has a disability un- 
der the ADA. 

You may have observed that all these examples (taken 
from EEOC's Technical Assistance Manual) are about 
physical impairments, not mental. Could the EEOC be as 
uncertain about mental impairments as society in gen- 
eral? Maybe so, but we can say with certainty that the 
ADA principles developed by the EEOC and quoted here 
apply equally to mental impairments. 

Thus, in the interview room or at the work site, this is 
the question that needs to be addressed: Does a person's 
impairment significantly interfere with the ability to func- 
tion? If it does, then the person probably has a disability 
and is entitled to the protection and benefits of the ADA. 
But let us not be confused about this. Not everything that 
can be labeled automatically becomes a disability. In the 
same way that no one would regard me as having a vi- 
sual disability, neither would anyone regard my occa- 
sional bouts with paranoia as a disability. (Would they?) 
- D.C. 



Small employer covered because 
of consolidation with other firm 

Even a firm with fewer than 15 employees can be a 
covered entity under the ADA as shown in the case of an 
attorney with AIDS who sued the owner of a law firm that 
fired him. 

Martin M. Krimsky, attorney for plaintiff "John Doe," 
said defendant William Shapiro fired Doe just 10 days af- 
ter Doe told him that he had AIDS. Doe was given no ad- 
vance notice of the firing and no severance pay. 

An interesting issue was raised when U.S. District 
Court judge Robert S. Gawthrop III denied Shapiro's mo- 
tion to dismiss. Shapiro contended that his suburban 
Philadelphia law firm employed no more than 10 people 
and therefore was not covered by the ADA. 

Plaintiff Doe, however, successfully argued that the 
firm was covered because it could be consolidated with 
an equipment-leasing firm for which it does most of its 
legal work. The leasing firm, also owned by Shapiro, op- 
erated in the same building and was separated from the 
law firm only by filing cabinets, Krimsky said. Court 
records showed that the leasing firm and a related securi- 
ties firm maintained separate payroll, records, books, 
bank accounts and filed separate tax returns. The court 
held, however, that "although the defendants contend 
that each defendant is engaged in a separate industry af- 
fecting commerce, it is more accurate to state that each 
contributes something to a single, common enterprise..." 

Citing Beckwith v. International Mill Servs., Gawthrop 
used a four-step test to determine whether the law firm 
was a separate entity or part of an integrated enterprise: 
1) the interrelation of operations; 2) common manage- 
ment; 3) centralized control of labor relations; and 4) 
common ownership or financial control existing among 
the several entities. 

Gawthrop said the integrated nature of the operation 
was illustrated in a phone listing for the leasing company 
that showed the Shapiro law firm attorneys under the 
heading of "legal department." At least 90 percent of the 
cases handled by the Shapiro law firm were on behalf of 
the leasing company. 

The case does not set a judicial precedent because it 
was settled prior to trial. 

From Disability Compliance Bulletin © 1 994 




8 



^A^i/AA/l 



Employment agency sued by 
woman who didn't fit 'profile' 

An employment agency was sued because its 
owner allegedly refused to refer a woman for a 
prestigious secretarial position - reportedly be- 
cause the woman, who stutters, did not fit the 
agency's 'profile' for job candidates. The suit, 
which was filed by the Equal Employment Opportu- 
nity Commission (EEOC), raises two interesting 
points: 

First, employment agencies are covered under 
ADA'S Title I even though they technically are not 
employers - and the persons they place are techni- 
cally not their employees. Title I prohibits discrimina- 
tion by covered entities, not just employers. 
Employment agencies are covered entities. 

Second, even though the suit says that complain- 
ant Patricia S. Carter's stuttering does not constitute 
a disability, EEOC said the employment agency 
nevertheless discriminated against her because it 
perceived her speech impediment to substantially 
limit the ability to communicate and perform the es- 
sential functions of a secretarial position. 

The EEOC alleges these facts of the case: Carter 
went to Hopkins-Lull in October 1992 to enlist its 
help in finding a clerical position. Carter, who has 
worked in other clerical positions for several large 
companies and law firms in the Baltimore area, was 
interviewed and given a typing test by a Hopkins- 
Lull recruiter. Carter was found to be "highly quali- 
fied" for placement at a local investment company. 
However, the owner of the employment agency in- 
terviewed Carter and then refused to refer her for 
the job, reportedly stating that Carter did not com- 
municate effectively and did not fit the profile of 
candidates that she wanted representing the em- 
ployment agency, according to EEOC. The suit filed 
May 1995 asked the court to order Hopkins-Lull to 
pay back wages to Carter, who found a job within 
three months after leaving the agency. 

Disability Compliance Bulletin © 1 995 



U.S. companies abroad 

An inquirer wrote to the Equal Employment Opportu- 
nity Commission to ask whether the ADA applies to a 
subsidiary of AT&T that is located in the United King- 
dom. The Department of Justice wrote that Title I applies 
in certain circumstances to United States companies do- 
ing business overseas. Generally, Title I applies to U.S. 
citizens working for U.S. companies abroad. 

Disability Connpliance Bulletin © 1 994 



Local placement staff may be 
the resource for you 

by Janet Kohn, employer services coordinator, R5C 

Do all businesses need Braille applications to make 
their employment process accessible for people with dis- 
abilities? The answer is no. There are many more effec- 
tive and less expensive methods that can be used. 
Business people need a good resource for answers to the 
many ADA questions such as this, and vocational reha- 
bilitation placement staff can be that resource. 

Placement professionals assist people with disabilities 
to locate employment in line with their abilities and in- 
terests. To prepare this column, I spoke with placement 
staff from around Ohio to identify the critical pieces of 
ADA information they think business people should 
know. Their input gravitated to seven key points. 

1) Recruitment - At times employers ask if we can 
send an applicant with a specific type of disability be- 
cause they believe that person could do the job. What 
they are struggling with is the correct way, politically and 
legally, to recruit a person with a disability for a specific 
job. Our task is to inform business people that what they 
want is a person with the appropriate skills. A person's 
disability (or gender or race) should not be the qualifying 
attribute for the job. 

2) Interviewing- Placement professionals can ease an 
employer's fear by identifying potentially illegal ques- 
tions and addressing concerns about making the inter- 
view process accessible. While we cannot give an 
employer the name of the applicant's disability, we can 
talk about any functional limitations and the possible ac- 
commodations to overcome any work-related barriers. 
This is the information an employer needs to evaluate 
whether a person has the necessary skills, education and 
experience. 

An employer once told me that he would never use a 
sign language interpreter in a job interview because, if he 
could not communicate effectively one-on-one, he could 
never supervise the person. He explained that he was just 
using common sense. 

This employer had never communicated with anyone 
through a sign language interpreter and thus had no ex- 
perience to draw upon. Common sense is achieved by 
gathering current, accurate information and applying 
your similar experiences to a situation. He told me the 
purpose of the interview was for applicants to showcase 
their qualifications and for the employer to resolve con- 
cerns. Eventually, he agreed it would be reasonable to 
use an interpreter so the person could explain how he or 
she could do the job and he could resolve any concerns 
about the applicant's experience and education. 

3) Reasonable accommodation - It seems to be the 
nature of employers to imagine big money and major 
workplace disruption when thinking about accommodat- 
ing employees with disabilities, but that is not the reality. 
The ADA is built on the principle of effectively accommo- 



6) Essential functions - Employers need to look at the 
essence of a job (called the essential functions in ADA 
language) and then talk with the employee about how the 
tasks can be accomplished. We frequently find that only 
minor adjustments are necessary. 

A supervisor once told me that he would never hire an 
attorney who used a wheelchair because that person 
could not get law books off the top shelf. The essential 
function of the job, however, was processing the infor- 
mation not reaching the books. 

7) Getting help - Some accommodations cost money 
and employers need to know the sources for financial 
help. For example, the Disabled Access Credit (see page 
13) can assist small businesses with expenses such as 
sign language interpreters. Some creative larger compa- 
nies are setting up special funds to cover the accommo- 
dation costs so that the burden does not fall to individual 
departments. 

For answers to your ADA-related employment ques- 
tions, call your local RSC office or local community.reha- 
bilitation program. The placement staff of these 
organizations may provide the knowledgeable resource 
you need. But first, start with a "we can do it" attitude. 



DOsmidJi^ON'Ts: 

• Ask a person with a disability about his or her qualifications and ability to do a job. 

• Try to make a reasonable accommodation to enable a person with a disability to do a job. 

• Before deciding how to accommodate an employee with a disability, consult that person. 

• Keep all medical and psychological information strictly confidential. 

• Demand that employees with disabilities meet the same performance standards and work- 
place behaviors as any other employees. 

• Give a person with a disability the same opportunity to compete for a job as you give to 
other people. 



dating one person in a specific job. A placement profes- 
sional can help make this happen. Under the ADA the 
employer makes the final decision about which effective 
accommodation is provided. 

4) Employee responsibility - Accommodation starts with 
the individual's request. Employees are responsible for 
making their needs known. 

5) Employer responsbility - Employers are responsible 
for seeking input. The employment provisions of the ADA 
require that the person with a disability must ask for ac- 
commodation and then be involved in the process to 
identify what would work most effectively. 

Problems can result when the two above steps are 
missed. For example, an employer once padded the walls 
of the cubical of an employee with a seizure disorder in 
order to protect him. The employer perceived a problem 
and acted on what he thought was common sense. The 
individual with the disability had never asked for the ac- 
commodation and had not been consulted about the "so- 
lution." When all key players do not participate in the 
solution it can be a very costly and useless accommoda- 
tion. 






• Give preferential treatment to a person with a disability. 

• Ask an applicant any question that is likely to elicit information about a disability. 

• Use tests or other selection processes that screen out people with disabilities. 

• Require an applicant to take a medical exam before making a job offer. 

• Hire or keep a person with a disability who is not qualified to do the job. 

• Hire or keep a person whose disability would cause a direct threat to the health and safety of 
the individual or of co-workers. 

• Make an accommodation that will be on undue hardship. 



10 



Increasing Company Profit 



People with disabilities represent 
the greatest untapped labor pool 

Bylasen M. Walker, Ed.D., C.R.C., and Fred Heiiner, Ed.D. 

As disability management consultants to business and 
industry, our experience over the last two years has been 
that company officials too frequently view the Americans 
with Disabilities Act as another piece of social legislation 
designed to get in the way of company profit. From that 
perspective, compliance with the ADA becomes an effort 
to "dodge the bullet" or to do what is necessary to avoid 
litigation. With regard to the latter position, we often 
hear company managers say, "Well, we want to see how 
the courts are going to decide on the vague language in 
the act." This implies that those managers will not pursue 
full compliance until lawsuits and court decisions further 
refine ADA language, but ignores the fact that much of 
the ADA is already based on legally defined and rede- 
fined language. 

We try to make those managers aware that there are al- 
ready nearly 20 years of legal precedents in disability dis- 
crimination cases, generally stemming from violations or 
the Rehabilitation Act of 1973. But, more important, we 
attempt to make those managers aware of success stories 
from companies that have embraced ADA concepts as 
opportunities to profit by hiring the best qualified people 
and managing the cost of workplace disability. 

We offer Title I of the Americans with Disabilities Act 
as a means by which organizations can select qualified 
individuals willing to work and as a model for reducing 
disability expenditures. Over the past 10 years, we have 
found that application of ADA principles like "reasonable 
accommodation" actually saves companies money. 
Therefore, we now urge that company officials view ADA 
concepts as tools to increase profit by saving on the costs 
associated with finding, hiring and maintaining qualified 
employees, and by reducing expenditures associated with 
workplace disability. Of course, we believe that those 
well-managed organizations which pursue application of 
ADA concepts also lower the probability that they will be 
defendants in potentially expensive federal litigation. 

Qualified applicants who will work 

Robert B. Reich, U.S. Secretary of Labor, has encour- 
aged management and labor to make the necessary ad- 
justments to train and retrain the most highly motivated 
people in our country. Such adjustments would include 
hiring one of the best educated and most highly trained 
minority groups in the U.S., persons with disabilities. 

It has been our experience that the vast majority of 
people with disabilities, representing this country's great- 
est labor pool, are willing to work when provided the 
opportunity. Nearly every human resource manager tells 




us that the pool of "qualified" applicants H evaporating. 
By qualified, those company officials inevitably mean 
attitudinally as much as aptitudinally. Personnel offices 
increasingly hear supervisors complain that newly hired 
employees are unrealistic in terms of initial salary expec- 
tations, jaded by prior work experience or just plain diffi- 
cult. The offices of human resource managers are visited 
by employees who charge supervisors with being overly 
demanding, unfair, and in some cases, assaulting. 

It has been estimated that one in five Americans has a 
disability, and as the workforce ages, this percentage will 
increase so that Americans with disabilities will no doubt 
become the largest "minority" group. We must turn to 
this so-called minority to find people who are willing to 
work, not simply aptitudinally qualified to fill a role. 
Training and maintaining those willing to work increases 
an organization's profitability. 



...the use of wage replacement benefits 
tends to go down in companies that see 
the ADA as a model for proactively man- 
aging workplace disability. 



Nowhere is the typical company spending money 
faster than in the area of disability. Studies have shown 
that the average company spends eight percent of payroll 
on direct and indirect disability costs. Workers' compen- 
sation and long-term disability insurance carriers are rap- 
idly increasing premiums. Some companies have found 
that their workers' compensation costs alone are their 
highest line item next to payroll. 

Progressive, well-managed organizations are using the 
ADA as a model for designing and implementing disabil- 
ity management programs. Those companies realize that 
current workers are valuable. Allowing these employees 
to "disappear" after the onset of an occupationally signifi- 
cant injury or illness makes no economic sense. We 
know that companies can reduce disability expenditures 
and maintain workers by providing reasonable accom- 
modation. We have seen companies use essential-func- 
tion job descriptions not only as a method to qualify and 
accommodate a new hire with a disability, but also as a 
risk management tool to assist a physician, an employee 
and a supervisor to generate ideas on how a return-to- 
work plan might be executed. Companies doing this are 
saving between $8 and $10 for every $1 invested. 

We have also seen that a modification of jobs has pro- 
duced safer and more efficient ways to work. For ex- 
ample, there has been a tremendous reduction in the 
number of incidents of repetitive use syndromes by 



11 




'c^c^c^ 



Corporate acceptance exists 

A survey of America's corporate employers 
shows that 70 percent said the Americans with 
Disabilities Act should not be changed. Marking 
the fifth anniversary of the ADA, the National Or- 
ganization on Disability (NOD) released the find- 
ings of the survey conducted by Louis Harris & 
Associates Inc. 

Employers have better attitudes about employing 
people with disabilities now than they did in 
1986, when Harris conducted an earlier survey. 
The percentage of companies that say accommo- 
dations have been made in the workplace has in- 
creased from 51 percent in 1986 to 81 percent in 
1 995. The percentage of corporate employers with 
policies and programs for hiring people with dis- 
abilities has increased from 46 percent to 56 per- 
cent. However, the survey showed only a slight 
increase in the percentage of companies that have 
hired people with disabilities from 62 percent to 
64 percent. 

"This research refutes two myths about the 
ADA," said Humphrey Taylor, chair and CEO of 
Louis Harris. "The first myth is that corporate 
America is not supportive of the ADA. The over- 
whelming majority of senior corporate executives 
strongly supports the ADA and does not favor 
weakening it in any way. 

"The second myth is that many companies have 
incurred heavy additional costs or have been 
badly mired in litigation because of the ADA. This 
is only true of a very small fraction of employers." 

The survey also found: 

• 79 percent of employers said employment of 
people with disabilities would be a "boost to the 
nation." 

• 76 percent of corporate managers view the job 
performance of employees with disabilities as 
pretty good and 17 percent as excellent. Only 
three percent rated the performance as merely fair. 

• 27 percent of companies say the average cost 
of employing a person with a disability is greater 
than employing a person without a disability. The 
median cost per employee for accommodation 
was $223. 

For copies of the report, contact: NOD, 910 
16th St. NW, Washington, DC 20006; (202) 293- 
5960 voice, (202) 293-5968 TTY. 

Report on Disability Programs © 1995 



adapting keyboard designs that were once created for 
people with neuromuscular disorders. 

Finally, when companies are proactively managing dis- 
ability, employees come to believe the message that they 
are too valuable to waste, and the company is too com- 
mitted to both survival and profitability to be held as a 
disability benefit hostage. Thus, the use of wage replace- 
ment benefits tends to go down in companies that see the 
ADA as a model for proactively managing workplace dis- 
ability. 

In conclusion, we are encouraged by what we see. 
LInlike some observers, we do not think that the particu- 
lar number of EEOC complaints will necessarily be a re- 
flection of how well companies are complying with the 
ADA. We may need to wait another 20 years to fully real- 
ize the true power of a law designed to protect qualified 
people who just happen to be physically or mentally dif- 
ferent from the majority of those who maintain the profit 
margins in their companies. Americans with disabilities, 
including those injured or ill while at work, are usually 
interested in being productive and helping an organiza- 
tion grow. We have learned that through developing ADA 
awareness and tapping into the power of individuals with 
disabilities, well-managed companies have become 
more viable and profitable. Understanding the ADA and 
the potential it holds for all current and prospective work- 
ers, as well as employers, has become a vehicle of profit 
for the progressive and well-managed American work or- 
ganization. 

In The Mainstream, Jan. /Feb. © 1994 

Ohio group can take your calls 

Shortly after passage of the ADA, the National Institute 
on Disability and Rehabilitation Research established 10 
regional information resources across the nation known 
as "Disability and Business Technical Assistance Cen- 
ters." The center serving Ohio is located at the University 
of Illinois in Chicago. However, a "branch office" is lo- 
cated in Columbus. The ADA-OHIO office disseminates 
information and provides technical assistance about the 
ADA. The project's Steering Committee members come 
from many different public and private organizations, all 
having an interest in the ADA. They and the office staff 
provide telephone technical assistance, printed resource 
materials and educational workshops to business, gov- 
ernment, human service providers and individuals. 

Call (800) ADA-OHIO 

(800) ADA-AD A 1 TTY 
or e-mail: ada-ohio@ix.netcom.com 




12 



Tax Incentives 



Tax incentives are available to help businesses cover 
the costs of making access improvements or encourage 
hiring of people with disabilities. They are not part of the 
ADA, nevertheless, their potential value to businesses 
makes them inseparable from the ADA's purposes. 

Small business tax credit 

(IRS Code Section 44) 

The Disabled Access Credit is available for small busi- 
nesses that for the previous tax year had at least one of 
the following: $1 million or less in revenue OR 30 or 
fewer full-time employees. 

The credit (subtracted from total tax liability after cal- 
culating taxes) is available every year and can be used 
toward a variety of costs, including: sign language inter- 
preters (for customers or employees with hearing impair- 
ments), readers (for customers or employees with visual 
impairments), purchase of adaptive equipment, produc- 
ing print materials in alternate formats (Braille, audio 
tape, etc.), removing architectural barriers in buildings or 
vehicles, and fees for consulting services (under certain 
circumstances). The credit does not apply to the costs of 
new construction. It is used only for adaptations to exist- 
ing facilities that are required to comply with the ADA. 

The business earns 50 percent of expenditures up to a 
maximum of $10,000, for a maximum benefit of $5,000. 
This is available every year. There is no credit for the first 
$250 nor for expenses beyond $10,250. For example: 

Item Cost Credit Net Cost 

Interior signs $200 none $200 

Ramp, widened front door $7,250 $3,500 $3,750 

Restrooms $12,750 $5,000 $7,750 

Barrier removal deduction 

(IRS Code Section 190) 

Businesses of any size (including active ownership of 
an apartment building) are eligible for a maximum 
deduction of $15,000 per year to cover the expense of 
removing architectural barriers in buildings or transporta- 
tion barriers in vehicles. The amount spent is subtracted 
from the business' total income, before taxes, to establish 
taxable income. To be eligible, any renovations must be 
done in compliance with the applicable accessibility 
standards. 

Combining the two tax incentives 

Small businesses can use the credit and the deduction 
together if the expenses incurred qualify under both Sec- 
tion 44 and Section 1 90. For instance, if a business spent 
$12,000 for access adaptations, it could qualify for a 
$5,000 tax credit and a $7,000 tax deduction. 



Both the credit and the deduction can be used every 
year, but there are limitations. If a business spends more 
than can be claimed in one year, it is not permitted to 
carry over those expenses and thus claim a tax benefit in 
the next year as well. For example, if access expenses 
total $13,250 in 1996, the business qualifies for a tax 
credit of $5,000 because it spent $10,250-plus; but it 
cannot carry over the additional $3,000 in order to claim 
a credit for 1997. Only expenses incurred in 1997 will 
qualify for a credit in 1 997. 

However, if the credit a business is entitled to exceeds 
the amount of taxes owed, it may carry forward the un- 
used portion of the credit to the following year. 

- D.C. 

Adapted from "Fact Sheet #4 - Tax Incentives for Improving 
Accessibility" by Adaptive Environments Center, Inc., and ttie 
IRS booklets listed below. 

Targeted tax credit available 

The federal Targeted Jobs Tax Credit program which 
ended in late 1994 has been replaced by the Work Op- 
portunities Tax Credit (WOTC). The new program gives 
employers a tax credit for hiring people with disabilities 
who are or have been clients of the Ohio Rehabilitation 
Services Commission (or any state's vocational rehabilita- 
tion agency) or the Department of Veterans Affairs. 

Workers must be retained for 180 days or 400 hours 
befoer a credit can be taken. Credit against federal tax li- 
ability is 35 percent of the eligible employee's first 
$6,000 in wages, for a maximum credit per worker of 
$2,1 00. For summer youth, employers may claim a credit 
of 35 percent of the first 90 days wages up to $3,000, for 
a maximum credit of $1 ,050. 

The job applicant must complete IRS Form 8850 on or 
before the day a job offer is made. If the employer be- 
lieves the applicant is a member of a targeted group, the 
employer completes the rest of the form no later than the 
day the job offer is made. Both the job applicant and 
employer must sign and submit the form directly to the 
Ohio Bureau of Employment Services, 145 S. Front St., 
RO. Box 1618, Columbus, OH 43216-1618. Attn.: 
WOTC Unit. The form must be mailed and postmarked 
within 21 days of the start-to-work date. 




For IRS publications, call (800) 829-3676 

#907 - Tax Highlights for Persons with Disabili- 
ties (general) 

#535 - Business Expenses (architectural/trans- 
portation tax deduction) 

#334 - Tax Guide for Small Business (small busi- 
ness tax credit) 



13 



Federal incentives encourage 
hiring of people with retardation 

By Gale R. Cross, director of Disabilities Organizational 
Development Services, Columbus 

Fashionable television shows have highlighted indi- 
viduals with diverse disabilities who are productively 
employed. From a mayor who is deaf to a law office clerk 
with mental retardation and an active high school student 
with Down syndrome, fictional characters have personi- 
fied what the ADA defines as a "qualified employee with 
a disability" - an individual who, with or without reason- 
able accommodation, can do the essential functions of 
the job and meets the requirements for the position. 

However, despite media attention, litigation, legisla- 
tion, and organized or individual advocacy, 180,000 
Ohioans who have mental retardation remain at home 
and unemployed. Mental retardation affects between. two 
and three percent of the population statewide. On a na- 
tional basis it is 100 times more prevalent than total 
blindness. 

Mental retardation is present from childhood and is 
characterized by lowered functional intelligence as mea- 
sured on a standardized test and significant limitations in 
two or more adaptive skill areas (communication, self- 
care, home living, social skills, leisure, health and safety, 
functional academics, community use and work). More 
than 80 percent of those with mental retardation have 
such minimal learning impairment that, with or without 
accommodation, they have potential for employment. 

The Arc, the largest voluntary organization with the 
sole purpose of addressing issues of mental retardation, 
administers a major employer incentive program under 
the Federal job Training Partnership Act (JTPA). Funded 
by the U.S. Department of Labor, the Arc's 29-year-old 
National Employment and Training Program (NETP) reim- 
burses employers for the costs associated with training 
people with mental retardation who are more than 16 
years of age and are "qualified applicants." 

An employer can receive reimbursement for 50 percent 
of a trainee's entry wage for the first 160 hours of work 
and 25 percent of the wage for the second 160 hours. 
Among other criteria, employers also must offer at least 
20 hours per week of year-round employment and pay at 
least basic minimum wage. Examples of positions for 
which Ohio businesses have successfully trained people 
with mental retardation include: auto detailer, cook, de- 
livery person, dock loader, factory assembler, machinist, 
mechanical helper, porter, telephone operator, veteri- 
nary assistant and various clerical jobs. 

The need for accommodations has run the gamut from 
no assistance or natural workplace supports to job coach- 
ing. Some employees have required inexpensive pur- 
chases and adjustments in policies or procedures, such 
as alarm watches, color coding, oral and repetitive direc- 
tions, modified work schedules or job restructuring. 

Ohio is the second largest user of the NETP in the na- 




tion, but there remains potential for thousands of Ohio- 
ans to be assisted in employment annually through this 
incentive. Hiring individuals with mental retardation 
makes socioeconomic sense - employers obtain diligent 
workers with above average attendance and below aver- 
age turnover rates; individuals gain the dignity of being 
employed; and communities acquire productive, taxpay- 
ing citizens. For information on NETP funds, call your 
county board of mental retardation/developmental dis- 
abilities, or Wanda Trigg at The Arc National Headquar- 
ters, (800) 433-5255. 



'c^c^c^ 



Employers satisfied with 
mentally disabled workers 

Most surveyed employers with workers who have 
mental disabilities said that they were satisfied with 
the employees' job performance and did not find 
the costs of accommodating them unreasonable, 
according to a white paper on the ADA from North- 
western University's Annenberg Washington Pro- 
gram in Communications Policy Studies. 

The white paper discusses two studies conducted 
in 1989 and 1990 which focused on about 1,500 
workers with mental retardation and 47 of their em- 
ployers. The workplaces included stores, restau- 
rants, laboratories, hotels and hospitals. Study II, 
which surveyed employers, found that more than 
half were very satisfied with the workers' productiv- 
ity (59 percent); the vast majority (96 percent) were 
very satisfied with work attendance; and 78 percent 
were very satisfied with the workers' dedication. Al- 
though 67 percent said they were very satisfied with 
their disabled employees' interactions with cowork- 
ers, only 40 percent were very satisfied with their 
interactions with customers, the report said. 

Ninety-five percent of respondents in the em- 
ployer study said that their workers with mental dis- 
abilities did not have higher turnover rates than 
non-disabled employees in similar jobs, and 100 
percent said that mentally disabled employees did 
not have higher levels of absenteeism. Ninety-three 
percent said that workers with mental disabilities 
were not a safety risk, and 69 percent said that the 
job performance and productivity of workers with 
mental disabilities were not necessarily lower than 
those of other employees. In addition, 65 percent 
said they believed that adequate funding sources 
were available for workplace accommodations. 

The white paper, "The Americans with Disabilities 
Act: Putting the Employment Provisions to Work," is 
on the internet at: http://www.annenberg.nwu.edu. 



14 



^C{)Witt 



Medical Exams and Inquiries 



Employers must review process 
used to screen job applicants 

(NOTE: The term "medical" in the following means 
"medical and psychological. ") 

One of the larger effects that ADA has had on the work- 
place has been to change the way employers bring in 
new employees. At least for employers with 15 or more 
employees, the days of using medical and psychological 
inquiries to screen out applicants are gone. 

A point lost on some employers is that ADA's require- 
ments about the collection and use of medical informa- 
tion apply to all new applicants coming in the door, not 
just the ones who seem to have a disability. Of course, 
that's only logical, you are thinking - how else would 
each applicant be given the same opportunity? 

And you are correct. However, not everyone has 
clearly understood that what we're talking about is a per- 
manent change in the intake process. This is not business 
as usual. Even though I advise employers not to be afraid 
of ADA - compliance doesn't have to be difficult or ex- 
pensive - we cannot sugar-coat the law. It has made a 
difference and employers must revise their processes. 

Job intake sequence 

The new order in the intake for job applicants is: 

• interview — The employer uses the interview to deter- 
mine whether the candidate is qualified for the job and 
whether there is a match between the job duties and the 
candidate's skills. Because this first step is about ability, 
not disability, medical information cannot be solicited at 
this point. 

• job offer - The employer makes a conditional job of- 
fer to the individual who is most qualified and most 
skilled. The condition is that the candidate is, in fact, 
able to perform the job. 

• medical exam - After a conditional job offer, the em- 
ployer is free to require a medical examination just as in 
the past. The difference now is that any information ob- 
tained that does not relate directly to the candidate's abil- 
ity to perform the job cannot be used to screen out the 
candidate. For example, a previous back injury may not 
affect a person's ability to do a desk job at all, but might 
entirely prevent that same person from being a roofer. 
When the medical exam reveals a back injury that will 
not affect job performance, that information must be dis- 
regarded. If it will affect performance, and no accommo- 
dation is possible, the employer may withdraw the offer. 

Who con be examined? 

if a post-offer exam is given, everyone entering a par- 
ticular job category must receive it. If a response to an 
initial inquiry (such as a medical history questionnaire) 
reveals that an applicant has had a previous injury, illness 



Doctor^s opinion faulted 

An employer that relied on a physician's opinion 
in making an employment decision is liable for dis- 
crimination under the ADA, according to the deci- 
sion in EEOC V. Texas Bus Lines. The court ruled that 
the company discriminated against an obese job ap- 
plicant when it refused to hire her as an airport van 
driver. The court found that the company perceived 
the driver as having a disability when it rejected her 
based on one doctor's opinion that she would not 
be able to move quickly in case of an accident. 

Arezella Manuel applied for employment with 
Texas Bus Lines in March 1994. She was inter- 
viewed, her references were checked and she 
passed the company's road test. Texas Bus Lines ex- 
tended a job offer to Manuel, contingent upon her 
passing a physical examination as mandated by the 
Federal Motor Carrier Safety Regulations. The ex- 
amining physician found that Manuel had no medi- 
cal problems and marked her as "normal" for each 
of the examination categories, the EEOC said. But 
after spending only five minutes with Manuel and 
conducting no mobility or agility tests, the doctor 
refused to grant her the medical examiner's certifi- 
cate required by the Department of Transportation. 
Based on an observation of Manuel as she walked 
from the waiting room to the examining room, the 
doctor concluded that she would be unable to 
move swiftly to help passengers in case of an acci- 
dent. Texas Bus Lines withdrew the job offer. 

The EEOC contended that because the doctor did 
not base his opinion on any valid medical data, 
Texas Bus Lines was unjustified in relying upon his 
conclusion. DOT regulations do not dictate that 
drivers maintain any particular weight or level of 
mobility and do not require that a physician evalu- 
ate a driver's ability to handle extreme emergency 
situations. The company should have realized that 
the doctor's opinion was "baseless," and sent 
Manuel to a second doctor, EEOC said. 

The bus company's argument that Manuel was 
not qualified under DOT regulations solely on ac- 
count of her weight "is neither supported by the 
objective medical findings nor the DOT regula- 
tions," the court said. Moreover, the company's de- 
cision not to hire Manuel because of a perception 
of disability violated the ADA because it was based 
on "myth, fear or stereotype." 

From BNA's ADA Manual © 1996 



15 



or medical condition, the employer cannot require the ap- 
plicant to undergo a medical exam unless all applicants in 
that job category are required to have such an exam. How- 
ever, the scope of exams need not be identical. 

In other words, when exam or inquiry indicates that 
further information is needed, the employer may give fol- 
low-up tests or exams. For example, all potential employ- 
ees in a job category must be given a blood test, but if a 
person's initial test indicates a problem that may affect 
job performance, further tests may be given to that person 
only, in order to get necessary information. 

Answering illegal questions 

People with disabilities need to know that the question, 
"Have you ever had any of the following conditions?" 
that still appears on some job applications is illegal when 
asked in the pre-offer phase. As are any similar inquiries 
asked orally in face-to-face interviews. However, you 
can't look to ADA for guidance on how to respond to 
these inquiries. True, the coming of ADA has made these 
questions illegal and provided legal recourse for people 
who are discriminated against. But even when such 
questions were legal, people in the disability community 
(wherever that is) have debated about how to respond. 

By law the individual need not answer at all. Realisti- 
cally, the best solution to this dilemma is determined, as 
always, on a case-by-case basis - what is the individual 
comfortable with, how well is the employer known, how 
egregious is the offense? 

Drug testing 

Testing for the illegal use of drugs is not considered a 
medical exam under ADA. (This includes the illegal use 
of legal drugs.) Therefore, drug testing may be conducted 
at any time and is not subject to the restrictions described 
under "job Intake Sequence" above. The major concern 
for employers is about drug testing in the pre-offer phase. 
Discovering a candidate's use of a legal drug may reveal 
the existence of a disability that the employer is not per- 
mitted to know about. 

Because some employers use drug testing as an early 
screen-out device, much advice about handling this di- 
lemma has been bandied about. The Equal Employment 
Opportunity Commission (EEOC), which enforces the 
employment portion of ADA, has said "If an employer 
conducts a test solely for unlawful drug use, but receives 
test results indicating lawful drug use, the employer has 
not violated the ADA." 

EEOC's position notwithstanding, some employers re- 
main concerned that possessing such information puts 
them at risk in the event that a person with a disability, 
for whatever reason, is not hired. Unofficial advice: For 
those employers who cannot be persuaded otherwise, 
perhaps the safest course is to do drug testing in the post- 
offer phase only. 

- D.C. 



Use and timing of applicant or 
employee medical inquiries 

With respect to applicants, the ADA establishes that no 
pre-offer inquiries regarding medical history or physical 
testing are permissible. Broad questions such as "Have 
you ever been hospitalized and if so, for what?" are not 
allowed. Pre-employment inquiries are limited to ques- 
tions concerning the ability of an applicant to perform the 
essential functions of a job with or without reasonable 
accommodations. Employers may ask an individual with 
a known disability (or a visible disability) to describe or 
demonstrate how functions of the job will be performed. 
The individual can request reasonable accommodation 
for the demonstration. 

After an offer of employment has been made, an indi- 
vidual can be required to undergo a medical examination 
if all applicants for such positions are examined. The in- 
formation from the test must be kept confidential. 

Confidentiality is an important component of the ADA's 
regulations. Employers are required to maintain a sepa- 
rate medical file distinct from a worker's general person- 
nel file. Under certain circumstances, information that is 
otherwise confidential can be shared: supervisory per- 
sonnel may be informed about an individual's medical 
restrictions or necessary accommodations; safety or first 
aid personnel may be advised if particular treatment or 
special evacuation assistance will be necessary; govern- 
ment officials investigating compliance with the ADA 
may get access pursuant to their investigation; inquiries 



May an employer ask a job applicant 
about the number of days he or she 
has been sick in the previous year? 

An employer may state its atten- 
dance requirements and ask 
whether an applicant can meet them. 
Further, an employer may ask how 
many days the applicant was absent 
from the last job. However, at the 
pre-offer stage, an employer may not 
ask how many days an applicant 
was sick, because such inquiry is 
likely to elicit information about a 
disability. After a job offer has been 
made, on employer may make 
inquiries concerning prior sick days, 
as long as the practice is applied to 
all entering employees in the same 
job category. 




A 



16 



and Workers' Compensation or second injury fund office, 
and employer health or life insurance companies or ad- 
ministrators may get information related to claims. 

Current employees also have protections under the 
ADA. Medical exams or inquiries are only permissible 
with respect to incumbents if they are job-related and all 
individuals in the same category are subject to the same 
questioning. The same confidentiality protections apply. 

Information obtained in the process of testing for illegal 
drugs, such as that an individual is taking a prescription 
medication to control a particular disability, is to be 
treated as confidential medical information. 

The ADA has established a carefully structured process 
to ensure that individuals with disabilities are evaluated 
on their merits rather than on the myths or misconcep- 
tions that may surround their disabilities. 

From a response by Matthew D. Cohen, Esq. to a ques- 
tion submitted to Disability Compliance Bulletin © 1 994 

Pre-hire screening for back 
problems can comply with ADA 

Screening programs aimed at keeping workers prone to 
back injuries out of high-risk jobs can be reconciled with 
the ADA, a specialist in ergonomics told a lower-back in- 
jury symposium at The Ohio State University in 1 993. 

To pass muster under ADA, any form of pre-employ- 
ment testing needs to be clearly job-related, said Chuck 
Anderson, president of the Dallas-based testing firm Ad- 
vanced Ergonomics Inc. "There should be a high degree 
of similarity between the job and what the person is do- 
ing [in the pre-employment test]." Testing also has to be 
valid and objective, he said, and it needs to be combined 
with thorough job analysis, focusing on strength require- 
ments along with any endurance and posture requirements. 

"There is a lot of research out there now that indicates 
how physical parameters such as age, height, weight and 
sex are not good indicators of a person's physical ability 
to do a job," Anderson said. Some medical tests being 
used to identify people at risk of injury on the job also are 
not good predictors of future performance, he said. 

Such medical testing also could run afoul of the ADA 
another way, since the law prohibits pre-employment 
medical inquiries or testing until a job offer is made, said 
Columbus attorney Michael G. Moore. But he said the 
ADA still allows an employer to devise physical and 
other job criteria and tests, provided the tests are job-re- 
lated and consistent with business objectives. "There's 
going to be a lot of litigation," Moore said. 

People with a prior history of back injuries would meet 
the act's definition of disability, but plaintiffs claiming 
they are qualified potential employees with a disability 
will have the burden to establish that in court, Moore 
said. "After a person has proved that, the employer has 
the burden of proving that reasonable accommodations 
cannot be made to allow the person to do that job with- 
out undue hardship." 




Great Lakes Disability & Business Technical 
Assistance Center, (800) 949-4ADA voice/TTY. 

Definition of disability issued by EEOC 

The Equal Employment Opportunity Commission 
(EEOC) has issued guidance on how to determine 
whether an individual has a disability as defined by 
the ADA. Developed for EEOC field investigators to 
use in examining employment complaints, the ma- 
terial cites examples (two below) from real cases. At 
more than 80 pages, it is highly technical, somewhat 
turgid reading. 

Example 1 - Several years ago, the charging party 
(CP) was hospitalized for treatment for a cocaine ad- 
diction. He has been rehabilitated successfully and 
has not engaged in the illegal use of drugs since re- 
ceiving treatment. CP, who has a record of an im- 
pairment that substantially limited his major life 
activities, is covered by the ADA. 

Example 2 - Three years ago, CP was arrested and 
convicted of the possession of cocaine. He had used 
the substance occasionally, three or four times over 
a 16-month period. CP has not used cocaine or any 
other illegal drug since his arrest. CP is not covered 
by the ADA. Although CP has a record of cocaine 
use, the use was not an addiction and did not sub- 
stantially limit any of CP's major life activities. 

Guidance on pre-employment questions 

ADA Enforcement Guidance: Pre-Employment 
Disability-Related Questions and Medical Exams 
covers the restrictions on the type of medical infor- 
mation that employers can ask job applicants about. 
There are several changes to the interim guidance 
issued by EEOC in 1994. Most notably, it clarifies 
that employers may ask certain questions about rea- 
sonable accommodation at the pre-offer stage. In 
particular, employers are now permitted to ask lim- 
ited questions about reasonable accommodation if 
they reasonably believe the applicant will need ac- 
commodation — a disability may be obvious, or the 
applicant may voluntarily disclose that he or she has 
a disability or will need an accommodation. 

Human resource guides available 

Four free publications, developed by lAM Cares, 
focus on employment issues: "A Guide for Ap- 
proaching job Descriptions and Determining Quali- 
fications," "A Guide for Interviewing," "A Guide to 
Selected Forms of Accommodations: Rescheduling 
Work Hours, Restructuring a Job or Reassigning Em- 
ployees" and "A Guide to Selected Forms of Accom- 
modation: Modified and Specialized Equipment." 



17 



Defining Essential Functions 



Identification of essential tasks 
can protect employer, employee 

The key to understanding the ADA is understanding the 
concept of essential functions in the context of job duties. 
This is why: Employers must know what their jobs' essen- 
tial functions are in order to match jobs to individuals and 
accommodate individuals who have disabilities. Making 
appropriate matches and accommodations will, in the 
great majority of cases, ensure compliance with the ADA 
and protect both the employer and the employee. A per- 
son with a disability who cannot perform the essential 
functions of a job does not have to be hired or retained. 
On the other hand, an applicant or employee with a dis- 
ability cannot be excluded because of an inability to per- 
form a marginal function. 

ADA regulations state that "essential functions means 



A person with a disability wtio cannot 
perform tlie essential functions of a job 
does not have to be hired or retained. 



the fundamental job duties of the employment position 
the individual with a disability holds or desires." In its 
Technical Assistance Manual, the EEOC elaborates on 
this definition for nearly 10 full pages. Why so lengthy? 
Because EEOC recognizes there are many ways of think- 
ing about what is fundamental to a job. 

Determining winat is essential 

Determining whether a function is essential ordinarily 
starts with two considerations: 

1) Does the employer actually require employees in 
the position to perform the function? 

EXAMPLE: A job description for a receptionist in- 
cludes typing as a function of the job. If no one in 
that job ever does any typing, however, then it can- 
not be considered an essential function. 
If the answer to Question 1 is yes, then the employer 
should consider the following question: 

2) Would removing the function fundamentally alter 
the job? 

The employer may find the answer to Question 2 by 
considering the following three questions: 
2A) Does the position exist to perform the function? 
EXAMPLE: A proofreader must be able to per- 
form proofreading. The ability to proofread ac- 
curately is an essential function. Removing that 
function to make an accommodation would 
mean that it is no longer a proofreader job. 



An applicant/employee with a disability 
cannot be excluded because he or she 
cannot perform a marginal function. 



2B) Is there a limited number of other employees 
available to perform the function, or among 
whom the function can be distributed? 

EXAMPLE: In a high-volume front office with 
only three employees everyone must answer the 
phone. A person with a communication impair- 
ment who can perform all the other tasks may 
be excluded from the job if he or she cannot use 
the phone efficiently. 
2C) Is the function highly specialized, and was the 
person in the position hired for special exper- 
tise or ability to perform it? 
EXAMPLE: A company that is expanding into a 
foreign country may require fluent communica- 
tion ability in another language as an essential 
function for jobs in the new operation. 



; .^„:..;.*-i*»^ii 



■IS: 



la. 



Employer need not lower 
production standards 

The discharge of two grocery selectors with dis- 
abilities, due to their inability to meet newly estab- 
lished production standards, did not violate the ADA, 
held the Tenth Circuit Court of Appeals in Milton v. 
Scrivner, Inc. Charlie Milton and Gary Massey both 
worked for the same employer as grocery selectors, 
and they both sustained various on-the-job-injuries. 
When their employer established new production 
standards that they were unable to meet, both men 
were discharged. The employees alleged that the dis- 
charges violated the ADA and other federal and state 
laws, but a federal district court ruled against them. 
They sought review from the federal appeals court. 

The ADA claims failed because the employees were 
not qualified individuals with a disability under that 
statute. Speed was essential to the job, and the em- 
ployer presented unrebutted evidence of its inability 
to accommodate the employees' disabilities. The 
lower court's decision was affirmed. 

From Disability Compliance Bulletin © 1 995 



18 



other evidence 

In addition to the preceding questions, EEOC will con- 
sider eight other factors when investigating a complaint: 

• employer judgment 

In spite of what employers may think, their determi- 
nations of what is essential to their jobs are signifi- 
cant factors to be considered along with other 
evidence. Although their judgments will not be the 
only or the most important factors, neither will their 
production standards be second-guessed. Employers 
set their own standards for quality and quantity. 

• written job description prepared before advertising 
a job or interviewing applicants 

A written job description that was on hand before ad- 
vertising or interviewing for a job began will be con- 
sidered. However, if it no longer reflects the duties 
that are actually performed on the job, it will not be 
an important factor. NOTE: The ADA does not re- 
quire job descriptions. 

• amount of time spent performing the function 

If an employee spends most of the workday operating 
a particular machine, that operation is probably an 
essential function. (This item may need to be viewed 
in conjunction with the next one.) 

• consequences of not requiring a person in this job 
to perform a function 

The firefighter example illustrates this factor best: Be- 



Officer didn^t control diabetes 

A police officer with diabetes who failed to control 
and monitor his condition and had a diabetic reaction 
that resulted in a high-speed driving incident cannot 
claim ADA protection, a federal appeals court has 
held. In Siefken v. Village of Arlington Heights, III., a 
former probationary police officer experienced a dia- 
betic reaction, resulting in disorientation and memory 
loss, while driving a squad car. He drove at high 
speed through residential areas 40 miles outside his ju- 
risdiction and stopped only when pulled over by other 
officers. When the village fired him, he sued under the 
ADA, claiming that but for his diabetes, the incident 
would not have occurred. Affirming a district court's 
order of dismissal, the U.S. Court of Appeals for the 
Seventh Circuit said the more immediate cause of the 
incident leading to the officer's termination was his 
failure to monitor his condition. The court agreed with 
the American Diabetes Association, which filed a 
friend-of-the-court brief, that "with current technology 
and proper monitoring, most diabetics can reduce the 
chances of severe hypoglycemic reaction to virtually 
nil." The officer did not do so, the court said, "and can- 
not now claim that the village must pay for his failure." 

From BNA's ADA Manual © 1995 



ing able to carry a person from a burning building is 
clearly an essential function even if the ability is 
rarely needed. 

• terms of a collective bargaining agreement 
Contract language that specifies the duties of a job 
will be considered, but as with a job description, 
only to the extent that it describes what is actually 
done on the job. 

• work experience of people who have performed the 
job in the past and who currently perform similar jobs 
This may be the single most important of all the fac- 
tors discussed here: What are current holders of this 
job doing now? 

• nature of the work operation 

One business operates under periodic deadline- 
driven schedules. To afford maximum flexibility dur- 
ing times of peak activity, all production employees 
must be able to perform many tasks with different re- 
quirements. All these tasks are considered essential 
functions. In another business where production 
continues at a more or less stable level, production 
workers each repeatedly perform one major task. That 
task may be each worker's only essential function. 

• employer's organizational structure 

A "team" operation may require each member to 
perform, on a rotating basis, all the functions of that 
team. All the functions may be considered essential. 




Food server could not perform 

A restaurant did not have to accommodate a food 
server with mitral valve prolapse, dysautonomia, 
panic attack disorder and hypoglycemia who was un- 
able to handle the work when the restaurant became 
crowded, an Alabama federal district court decided. 
The employee testified that she suffered panic attacks 
at these times and that the attacks left her confused. 

Summary judgment was granted to the restaurant af- 
ter the district court concluded that the worker was not 
a qualified individual for purposes of the ADA because 
her disability prevented her from performing her es- 
sential job functions. In Johnson v. Morrison, Inc., the 
court learned that the employer attempted to accom- 
modate the food server by assigning her to the least 
busy area, but still she could not handle the work 
when the restaurant became crowded. The employer 
was not required to provide another employee to 
handle the food server's duties. Furthermore, the em- 
ployer was not required to remove the employee from 
her work station when it became crowded. 

From Disability Compliance Bulletin © 1 994 



19 



Marginal functions 

when a person with a disability is unable to perform an 
essential function of a job, the employer must try to pro- 
vide a reasonable accommodation. The rest of the re- 
quirement is this: When there is no accommodation that 
will allow a person to perform marginal functions, the 
employer must give those duties to other employees or 
arrange a trade of duties. In any case, the person with a 
disability must not be excluded because of the inability 
to perform a marginal function. 

EXAMPLE: A candidate for a receptionist's job is able to 
answer the telephone, keep schedules on the computer 
and do filing, but his disability prevents driving. Thus he 
cannot make the twice-a-month delivery to the branch 
office on the other side of town that the previous holders 
of this position have made. Since there are several other 
people in the office who could do this task, he cannot be 
refused the job because he cannot drive. 

Product V. process 

Essential functions need to relate to the product or the 
results that an employer wants, not to the way in which a 
job is performed. Often, it may not be essential for a 
function to be done in a particular manner. 

EXAMPLE: An employee who uses a computer may 
have to perform the essential functions of accessing, in- 
putting and retrieving information from it. The essential 
functions would not be to manually enter or visually read 
information because there are adaptive devices and soft- 
ware programs for people without manual ability or good 
vision. 

Changing essential functions 

The ADA'S intent is to ensure that employers evaluate 
each person's qualifications for a job in relation to that 
job's essential functions. Still, despite what some believe, 
employers retain the right to decide what tasks need to be 
accomplished and which functions go together to com- 
prise a job. This includes the right to change what is es- 
sential to a particular job even if the result is that a person 
with a disability can no longer perform the job. 

EXAMPLE: Employees in downsizing companies may 
find that they now have to perform duties that had been 
done by other people. Employers need to take each 
individual's abilities and limitations into account when 
combining jobs, just as they would for hiring new em- 
ployees, and accommodations must be considered 
whenever necessary. However, in these situations the 
number of employees available to share job duties may 
become a factor (see "Defining Essential Functions," 2B, 
on page 1 6). 

Modifying a job can include revising production stan- 
dards, even if that unintentionally results in an employee 
with a disability no longer being able to perform the job, 
as long as the new standards are applied equally to all 
employees. 

- D.C. 




Technical assistance manual, 
''EEO is the law'' poster 

The best resource for employers is the 7/t/e / 
Technical Assistance Manual from the Equal Em- 
ployment Opportunity Commission (EEOC). This 
book discusses reasonable accommodation, undue 
hardship and the relationship between ADA and 
workers' compensation. It includes examples of real 
situations and will answer some of your questions. 

The EEOC also prints an "EEO is the Law" poster 
for display in a conspicuous location where notices 
to applicants and employees are customarily 
placed. The ADA requires employers to post no- 
tices describing the federal laws that prohibit job 
discrimination and further mandates that this notice 
be available in a location that is accessible to 
people with mobility limitations and in a format 
that is accessible to people with vision or reading 
limitations (e.g., audio tape or reading aloud). 

The manual (in print or on computer disk) and 
the poster (in print or on cassette) are free from: 
EEOC, P.O. Box 12549, Cincinnati, OH 45212; 
(800) 669-EEOC voice, (800) 800-3302 TTY. 

Model job descriptions for 
the food service industry 

Being clear about what functions are essential to 
a job can help an employer comply with ADA in 
two major ways: determining when a candidate 
with a disability is qualified, and deciding how to 
accommodate an employee with a disability. The 
National Restaurant Association publishes a com- 
prehensive resource book called "Model Position 
Descriptions for the Food Service Industry." This 
book provides 43 separate, concise models for writ- 
ing new job descriptions or for updating old ones. 
Cost is $16.45 for members, $33 for non-members, 
plus shipping. Contact the association at: 1200 
17th St., NW, Washington, DC 20036-3097; (202) 
331-5900, (202) 331-2429 fax. 

DOJ documents on-line 

The U.S. Department of Justice operates an elec- 
tronic bulletin board system that contains its ADA 
regulations and technical assistance materials as 
well as some materials from other federal agencies. 
Download by computer modem: (202) 514-6193. 
Or access via the Internet: http://www.usdoj.gov/ 
crt/ada/adahomi .htm 



20 



Reasonable Accommodation 



When is it required? 

Employers must provide reasonable accommodations 
to the known physical or mental limitations of a qualified 
applicant or employee with a disability. This obligation 
applies to all aspects of employment - when advertising, 
recruiting or accepting applications for a job, testing or 
interviewing applicants, and hiring, promoting, reward- 
ing or disciplining employees. 

Generally, it is the responsibility of the individual with 
a disability to let the employer know of the need for an 
accommodation. Moreover, the individual is in the best 
position to know what the accommodation should be. If 
the employer observes that an employee with a known 
disability is having difficulty performing job functions, 
the employer may raise the issue of the need for accom- 
modation, to overcome performance problems, with the 
individual. 

Employers will also encounter situations in which an 
individual's disability is not apparent, but the individual 
still requires accommodation. Under such circumstances, 
if the employer has been informed by the individual 
about the need for an accommodation and it would not 
be an undue hardship, the employer must provide it. For 
example, if an individual has a learning disability that 
makes it difficult to write and spell correctly, the em- 
ployer could allow the individual to dictate reports. If an 
individual had a fused spine and could not bend or lift 
easily, the employer could redistribute nonessential func- 
tions that involve bending and lifting to other employees. 
If the functions were essential, the employer could allow 
the individual to do those functions in a sitting position. If 
an individual with a disability requests an accommoda- 
tion and the need for it is not apparent, the employer may 
ask for documentation showing that the accommodation 
is necessary for the individual to perform the essential 
functions of the job. 

When is it not required? 

An employer is not required to provide an accommo- 
dation if it would be an undue hardship. An undue hard- 
ship is an employer action involving significant difficulty 
or expense; that is, an action that would be unduly 
costly, extensive, substantial, disruptive or that would 
fundamentally alter the nature or operation of the busi- 
ness. Determining whether a particular accommodation 
would be an undue hardship must be done on a case-by- 
case basis. These factors are considered when determin- 
ing undue hardship: 

• Nature and cost of the accommodation. 

• The overall financial resources of the facility; number 
of employees; the effect on expenses and resources; 
or the impact of the accommodation on the facility. 



• The overall resources of the covered entity; the over- 
all business of the covered entity; the number of em- 
ployees; number, type and locations of facilities. 

• The type of operation or operations of the covered 
entity; including the composition, structure and 
functions of the work force; geographic separateness; 
administrative or financial relationship to the facility. 

Given its relative nature, deciding if the ADA definition 
of undue hardship applies in a particular case may ap- 
pear challenging. The key concept underlying any analysis 
is reasonableness. How reasonable is the accommodation? 
What might be reasonable for a large employer might be 
unreasonable or an undue hardship for a small employer. 

EXAMPLE: A "mom and pop" cheesecake bakery has 
decided to hire one person to take orders by phone for 
the Christmas season. Given the size and nature of the 
operation, hiring an individual who is deaf to handle all 
telephone orders might be an undue hardship. The per- 
son would need a text telephone; locating and installing 
the phone would take time and be costly for the bakery; 
and using that phone would slow down the number of or- 
ders that could be taken. For a large, national mail-order 
house that manufactures and sells clothing directly to the 
public, hiring an individual who is deaf and providing a 
text telephone might not be an undue hardship because 
of the size of the work force and the availability of shift 
work with light to moderate call-in rates. 

There are special circumstances in which reasonable 
accommodation is not required. 

EXAMPLE: The ADA prohibits discrimination against an 
individual because of a known association with or rela- 
tionship to an individual with a disability. An employer 
who knows that an individual's spouse is terminally ill 
and on that basis decides not to hire the qualified indi- 
vidual, would be in violation of the ADA Title I. How- 
ever, if the employer does hire a person with a terminally 
ill spouse, the ADA does not require that the employer 
provide reasonable accommodation to the person, i.e. if 
that individual, as a condition of accepting an offer of 
employment, requests two hours, midday, three times a 
week to take the ill spouse to treatment, the employer 
could refuse the request and not offer the individual the 
job without violating the ADA. 

EXAMPLE: An accommodation is not required if an in- 
dividual refuses it. If an individual rejects an accommo- 
dation that is necessary to enable that person to perform 
the essential functions of the job, then the employer 
could withdraw the offer of employment since the indi- 
vidual would not be considered qualified. 

From A Guide to Selected Forms of Accommodation: 
Rescheduling Work hlours, Restructuring a job, or Reas- 
signing Employees developed by lAM Cares (see "re- 
sources" page 17). 



21 



A sample accommodation policy 

The ADA requires employers to provide reasonable ac- 
commodation to qualified employees and post-offer job 
applicants with disabilities when such accommodation is 
requested and is within the means of the organization. 
The following sample policy will help your organization 
respond properly to requests for accommodation in the 
workplace. Do not be misled. This policy will not make 
accommodation decisions for you, nor will it tell you 
how to decide. It can serve as a tool, however, to ensure 
that you consider all the relevant points. 

1 WRITTEN POLICY 

Clearly state your organization's policy on providing 
accommodations. Include it in your personnel manual, 
post it conspicuously within the workplace, and other- 
wise make it known to both employees and job applicants. 

2 JOB DESCRIPTIONS 

Although not required by the ADA, detailed, regularly 
updated job descriptions for each position are desirable 
for a variety of reasons that bear on ADA compliance, in- 
cluding properly matching job applicants to available 
positions and evaluating employee performance. They 
also help in evaluating requests for reasonable accommo- 
dation. Note that you should always check a job descrip- 
tion before posting a job opening to ensure that it 
accurately describes current job duties. 

a. job skills - Identify the skills and abilities currently 
used on the job. The job description should not in- 
clude skills that are no longer required, such as tak- 



The Basic 



ing shorthand, and it should not omit new skills that 
recently have become required, such as proficiency 
in a particular word processing program. Both em- 
ployees and applicants must possess legitimate skills 
and abilities required for the position. 

b. job duties - Identify the duties currently performed 
in the job. Involve the supervisor in this process 
and, when possible, an incumbent in the position. 
Performance criteria must be accurate. For example, 
if a job description requires "assembling 20 devices 
per hour" but the accepted production rate is 1 5 per 
hour, then the figure in the description is irrelevant. 

c. essential/marginal - Apply the criteria in the defini- 
tion of essential functions carefully. Job duties are 
essential if they are the reason the job exists (e.g., 
typing for a typist), if removing the duty would pro- 
foundly change the nature of the job (e.g., operating 
a forklift in a warehouse), if there are no other em- 
ployees who could assume a particular duty (e.g., 
two hours per day of bookkeeping for the sole book- 
keeper in the company). If a duty can be eliminated 
or given to another employee, it is, by definition, 
marginal. 

3 EMPLOYEE NOTIFICATION 

Notify an employee or post-offer applicant who is re- 
questing an accommodation that the request will be thor- 
oughly investigated. Failing to acknowledge the request 
leaves the impression that you are not responsive or that 
the request has fallen into a bureaucratic "black hole." 
You may wish to create a form that serves as a vehicle for 




Process 




This four-step reasonable accommodation process is suggested by the Equal Employment Oppor- 
tunity Commission. It provides a basic framework for employers who do not know how to pro- 
ceed with a request for an accommodation. However, for some people this is too basic. If that is 
the case, use the above "sample policy" for reasonable accommodation. Using either one will not 
ensure that an employer will always come to the correct conclusion or prevail against an 
employee's complaint. However, the chances will be greatly improved and the good faith effort 
will be obvious. 

1 . Analyze\Ue job and determine its essential functions. 

2. De/erm/ne the employee's abilities and limitations (in consultation with the employee). 

3. /cfen//// potential accommodations and assess their effectiveness (in consultation with the 
employee). 

4. C/7oose the accommodation that serves the needs of both the employee and the employer 
(after considering the employee's preference). 



C 

c 

c- 

r 
r 



22 



the employee to submit the accommodation request and 
for you to recognize receipt of the request. 

4 INFORMATION GATHERING 

Take advantage of every reasonable resource to help 
you collect pertinent data. This nearly always starts with 
the employee who is making the request. Other re- 
sources are management staff, the immediate supervisor, 
another incumbent in the position, and any specialists - 
ergonomics experts, rehabilitation counselors, rehabilita- 
tion technologists, etc. - whose skills are needed to 
evaluate or design a job modification. You might con- 
sider designating an ADA coordinator to facilitate this 
process. (This is required if you are a government entity 
with 50 or more employees.) Larger organizations may 
wish to establish a permanent reasonable accommoda- 
tion committee with representatives from management, 
human resources, the union, and other employees. In 
many cases the ADA coordinator or committee will be 
able to arrange an accommodation using no more than 
the existing job description and sound negotiating skills. 

NOTE: In all cases, coordinators, committee members, 
and other employees involved in the evaluation process 
must respect and protect the requesting employee's con- 
fidentiality rights. The ADA specifically provides that in- 
formation about the employee's disability circumstances 
can be released only on a clear "need to know" basis. 
(For example, the only employees who may need to 
know are the immediate supervisor and safety personnel.) 
If other employees are to participate, it will have to be 
with the requesting employee's consent. 

5 DOCUMENTATION OF DISABILITY 

The employee requesting an accommodation must pro- 
vide evidence of the need for accommodation. Further, 
the ADA provides you the right to obtain an additional 
medical or psychological evaluation at your own ex- 
pense. Your demand for evidence of a qualifying disabil- 
ity cannot be punitive, but employees must understand 
that a reasonable accommodation cannot be had simply 
for the asking. 

6 EVALUATION OF A REQUEST 

First, evaluate the existing job description (see item #2 
on previous page). Is it accurate? When assessing a job 
for a potential accommodation, using an outmoded de- 
scription can place you at risk. 

a. Compare duties - Compare all duties to the limita- 
tions described by health professionals who have 
documented the employee's (or post-offer appli- 
cant's) disability. Do not be concerned about job 
duties that are within the individual's abilities; in 
other words, there is no need to consider reasonable 
accommodation or reassignment of duties for those 
functions the employee can still perform. 

b. Remove marginal functions - Eliminate all marginal 
duties that the employee cannot perform because of 
the disability. Exchange them with other employees 
to maintain balanced workloads (but take care that 



the trades are not punitive - e.g., the employee 
gives up desirable duties but receives only undesir- 
able ones). If eliminating or exchanging duties re- 
sults in a shorter workday, then the employee may 
be paid only for the hours worked. 

c. Accommodate essential functions - You must con- 
sider reasonable accommodation for all essential job 
duties that the employee cannot perform because of 
the disability. 

d. Identify the problem - What aspect of the job can 
the employee not perform because of the disability? 
Think about results or product, not process. EXAMPLE: 
Instead of the process of lifting or carrying heavy ob- 
jects from a loading dock to a storage area, think of 
the results: moving those objects - which may be ac- 
complished with human or mechanical help. 

e. Research possible solutions - Locate specialist indi- 
viduals and organizations to help you find solutions. 
They may be in your own organization - some 
safety and loss control departments have people 
with ergonomics training already on staff. The Job 
Accommodation Network (800-526-7234 v/TTY) 
and many other agencies can provide free assis- 
tance. See the EEOC's Title I Technical Assistance 
Manual for resources. If you hear your staff saying, 
"but we've always done it this way," that may be a 
clue that a no-cost accommodation might be found 
simply through discussion, as described in the first 
two items below. Solutions may include: 

• modified procedures - This can include changing 
the sequence or the time of day in which duties 
are performed. You might allow a production 
worker to obtain materials just before the begin- 
ning of a shift when a dolly is readily available, or 
perhaps you could assign another worker to bring 
materials. A typist might be permitted to shift be- 
tween tasks according to need rather than an es- 
tablished schedule. 

• modified policies - An example is allowing a later 
start time or longer breaks for a person with diabe- 
tes or multiple sclerosis. This does not include re- 
ducing performance standards or paying a person 
for a full day when less than a full day was worked. 

• job modifications - Modifying the way duties are 
performed may be as simple as reorganizing a 
work station or retooling a machine to allow its 
operation by the opposite hand. 

• assistive devices - This includes anything that fa- 
cilitates a function for a person with a disability. 
Think broadly to include common and low-tech 
items. A dolly is an assistive device. So are hand 
controls on a vehicle and voice-activated com- 
puter programs. 

f. Estimate costs - Many accommodations involve 
altering workplace practices and carry price tags 
well within the means of most organizations. Never- 
theless, some may be expensive and could even 



23 



threaten profitability. If so, accommodation may 
qualify as an "undue hardship" and thus would not 
be required. This is your determination. 
g. Consider productivity - An accommodation that 
materially interferes with workflow may reduce pro- 
ductivity for a work unit. Such an accommodation 
would qualify as an "undue hardship" and thus 
would not be required. However, you should evalu- 
ate this with great care because some changes in 
work procedures have the long-term effect of in- 
creasing productivity for everyone involved. A hasty 
conclusion may put you at risk. 
h. Consider safety — An accommodation will not have 
to be made if it puts the person with a disability, co- 
workers, or the public at serious risk of harm. The 
determination of direct threat must be made care- 
fully and must not be based on conjecture. For ex- 
ample, a person with a vision impairment does not 
have to be employed as a pilot. On the other hand, 
a person who uses a wheelchair cannot be refused a 
job in a high-rise office building because of an 
employer's fears about emergency evacuation. 

7 THE CHOICE 

You must consult with the employee and give consider- 
ation to his or her preference. But when there is more 
than one effective accommodation available, you have 
the right to make the final choice. 

8 WRITTEN OFFER 

when you have decided on an accommodation, make 
the offer to the employee in writing. Again, you may 
want to create a form. 

9 DOCUMENTATION 

Keep complete records of all research and delibera- 
tions of the ADA coordinator or committee. Even though 
most accommodation processes go smoothly when all 
parties are making a legitimate effort, an employee, par- 
ticularly one who is not accommodated, may be dissatis- 
fied and file a complaint. Documentation of the process 
may defeat the claim and, at the least, will provide evi- 
dence of "good faith effort," which will preclude punitive 
damages. Retain the documentation developed about a 
reasonable accommodation, but do not mix it with other 
personnel records. Since accommodation deliberations 
inevitably will contain information about disability, you 
must safeguard the employee's right to confidentiality. 

10 LEGAL ADVICE 

Think about obtaining a legal opinion when you are 
concluding that you cannot accommodate a request for 
reasons of "undue hardship" or "direct threat." The bur- 
den of proof for the defense can be difficult, and the cost 
of improperly asserting the defense very high. You might 
also want to seek counsel when you are contemplating 
offering an accommodation but have concerns about di- 
rect threat. 

- D.C. 




Employer may choose among 
effective accommodations... 

The Office of Civil Rights (OCR) has rejected the 
claim of a school district employee with narcolepsy 
that her employer denied her a reasonable accom- 
modation for a particular school year. The 
employee's condition limited her ability to drive an 
automobile safely for more than 1 5 to 20 minutes. 
She alleged that the district offered her positions 
that it knew she could not accept because they 
were far from her home. 

OCR found that the district had offered the em- 
ployee a reasonable accommodation for the school 
year: a transfer to a district located reasonably close 
to her home. Further, the position that was offered 
was equivalent to the one formerly held with re- 
spect to duties and responsibilities. Although the 
employee ultimately rejected the accommodation, 
the district's offer was nonetheless a reasonable ac- 
commodation; an employer may choose among ef- 
fective accommodations when evaluating the needs 
of an employee with a disability. Thus, neither Sec- 
tion 504 nor Title II of the ADA was violated. 

ADA Compliance Guide © 1 993 

...after seeking employee input 

A state employee in Wisconsin who uses a 
wheelchair claimed the state failed to accommo- 
date her requests to work full time at home while 
recovering from pressure ulcers and to make the 
workplace kitchenette accessible. 

The court found that the employer provided the 
employee work for all but 1 6.5 hours of the time for 
which she requested work, which came to just un- 
der 95 percent of the hours for which she requested 
accommodation. For the remaining hours, she took 
paid sick leave. In addition, the employer modified 
the kitchenette and asked the employee to use al- 
ready existing, comparable facilities rather than 
spend over $1 ,000 to rebuild the entire kitchenette. 

These accommodations were reasonable, the 
court said, citing the EEOC rules implementing 
Title I which state that an employer need not ac- 
commodate an employee in the manner requested 
or provide the employee with the "best" possible 
accommodation. While the employee's preference 
should be given "primary consideration," the em- 
ployer has the ultimate discretion to choose be- 
tween effective accommodations, the court said. 

From BNA's ADA Manual © 1 994 



Cr 

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24 



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Hook up to ^/-^ \J : the 
Job Accommodation Network 

Accommodation does not always mean spending 
money. Simply modifying a workplace practice can 
sometimes produce a no-cost accommodation. Coming 
up with a successful reasonable accommodation requires 
three ingredients that are more important than money: an 
openness to new ways of doing things, a willingness to 
involve the employee with a disability thoroughly in the 
process, and a measure of creativity. What happens, 
however, when an employer with good intent is seated 
across the interview table from a person with a disability, 
and neither has a clue as to whether there is a way to ac- 
commodate the individual? 

An individual becomes, of necessity, the true expert on 
his or her own disability. Nevertheless, some accommo- 
dations simply are not obvious to either party. When the 
employer believes that the candidate cannot perform the 
job's essential functions, the job intake process ends. An 
offer of employment is not made. What then? 

It is not reasonable to expect every employer to have a 
rehabilitation technologist on staff or even on retainer. 
Yet both employers and employees need easy access to 
basic ideas about accommodations. That access is al- 
ready here via a toll-free telephone call. 

The Job Accommodation Network (JAN) was estab- 
lished in 1983 as a free service of the President's Com- 
mittee on Employment of People with Disabilities. It has 
grown with the times and become a sophisticated, com- 
puterized resource for anyone who needs consultation on 
accommodations. From its inception through 1990, JAN 
provided services for approximately 25,000 cases in the 
U.S. and Canada - roughly 3,000 per year. During 1 993- 
94, the yearly total had reached nearly 22,000, and the 
current year promises to eclipse that figure by a signifi- 
cant margin. 

Why so popular? Because the telephone lines are 
staffed with trained, experienced human-factors consult- 
ants who have access to a myriad of resources. Here are 
examples of the range of information you might obtain 
from a JAN consultant: 

• suggested changes in work activities; 

• alterations in work station or site; 

• product information; 

• referral to another resource; 

• ADA information; and 

• funding sources/tax incentives. 

The JAN consultants are generalists and specialists at 
the same time, each focusing efforts on a particular area 
of expertise, depending on background and experience. 
If modifying or purchasing equipment appears to be a so- 
lution, the caller will be provided with equipment de- 
scriptions, the location and telephone number of the 
nearest distributor for this equipment, and cost informa- 
tion. If fabrication of a device or on-site evaluation is 



necessary, the consultant will make suggestions and then 
refer the caller to a rehabilitation technologist in the area. 
JAN maintains files on products from more than 4,000 
wholesalers and manufacturers, as well as from thou- 
sands of service organizations, rehabilitation agencies 
and private consulting services. It has access to its own 
vast history of previous cases, now numbering more than 
100,000, from which to cull ideas. Information is avail- 
able from JAN by telephone, fax, computer and regular 
mail, whichever is most convenient for the caller. 

JAN conducts a continuous self-evaluation and pub- 
lishes a 15-page quarterly progress report. One of its 
seminal findings was the cost of accommodations (from 
October 1992 through March 1995), half of which were 
less than $200. Employers calculate that they have real- 
ized at least $30 in benefits for every dollar spent on ac- 
commodations. 

Of course JAN does not have all the answers, and not 
every situation can be resolved sight unseen. But it has 
served many employers and been instrumental in the hir- 
ing and retaining of thousands of people - resulting in 
enormous economic benefit to individuals and society. 

If you are an individual, remember that you are in the 
strongest position when you have the greatest amount of 
information. Talk to JAN on your own behalf If you are 
an employer, don't worry that you are not an expert on 
disability or accommodations. Worse, don't conclude 
that accommodation is not possible without consulting 
JAN. Regardless of whether your situation is complex or 
simple, JAN is the starting place when you don't know 
the next step. Call JAN at (800) 526-7234 or (800) ADA- 
WORK or write to 91 8 Chestnut Ridge Rd., Suite 1 , WVU 
RO. Box 6080, Morgantown, WV 26506-6080. The JAN 
internet site is: http://janweb.icdi.wvu.edu. 

- D.C. 




Great Lakes Disability & Business Technical 
Assistance Center, (800) 949-4ADA voice/TTY. 

Implementing the ADA series 

Cornell University's Program on Employment and 
Disability has produced several pamphlets relevant 
to the ADA. Products in the "Implementing the 
ADA" series address working effectively with and 
making workplace accommodations for people 
with: cognitive disabilities, brain injury, blindness 
or visual impairments, diabetes, psychiatric dis- 
abilities, substance abuse problems, learning dis- 
abilities, allergies, HIV, musculoskeletal disorders, 
and deafness and hearing impairments. 

Additional titles focus on injured workers, indoor 
air quality and health benefit plans. 



25 



The issue of absenteeism 

In Tyndall v. National Education Centers, the 
U.S. Court of Appeals for the Fourth Circuit held 
that a medical-assistant instructor with lupus, who 
had a son with gastro-esophageal reflux disease, 
was not protected by the ADA, since she was un- 
able to meet the job's attendance requirements. 
Despite the employer's accommodation efforts, 
which included permitting the employee to take 
sick leave, come into work late and leave early, 
and take breaks from ongoing classes when she felt 
ill, the employee missed almost 40 days of work 
during a seven-month period, related to either her 
own or her son's condition. The court noted that 
the same person who fired the instructor had hired 
her two years earlier, knowing of her disability - a 
fact that contributed to a "strong inference of non- 
discrimination." 

In Dutton v. Johnson County Board of County 
Commissioners, a federal district court refused to 
dismiss the ADA claim of an employee who was 
fired due to absences related to migraine head- 
aches. Observing that while regular attendance is 
an essential part of almost every job, the court 
found the employer did not show that permitting 
the employee to use unscheduled vacation to cover 
absences due to illness would either be an unrea- 
sonable accommodation or one that caused undue 
hardship. The court ordered that the employee was 
entitled to reinstatement and back pay of $49,877. 
The employer did not make a good faith effort to 
accommodate his disability. The employee did not ask 
that he be permitted more absences than any other 
employee, but only that he not be required to in- 
form the county in advance to use his vacation time. 

In Carr v. Reno, the U.S. Court of Appeals for the 
District of Columbia Circuit affirmed a decision fa- 
voring the U.S. Attorney's Office in an action by a 
former coding clerk who alleged discriminatory 
discharge under Section 501 of the Rehabilitation 
Act. The clerk was absent 477 hours in her first 
seven months of work because of Meniere's Dis- 
ease, an ear condition that causes dizziness and 
nausea. The court determined that an individual is 
"qualified" under the Rehab Act if able to perform 
essential job functions, either with or without ac- 
commodations. According to the court, essential 
functions of any government job are to appear for 
work and complete assigned tasks within a reason- 
able period of time. It pointed out that the em- 
ployee could not work regular hours, either with or 
without accommodations. It concluded that it 
would be unreasonable to ask the government to 
put up with poor attendance or require it to refer 
the employee to another agency for employment. 



Do co-workers have right to know 
of reasonable accommodation? 

Reasonable accommodation under the ADA provides 
separate requirements for employer and employee. The 
employee, if qualified, must request the accommodation, 
and the employer must grant it unless it would cause an 
undue hardship on the business. 

Seemingly left out of that equation is the impact of rea- 
sonable accommodation on other employees. Should co- 
workers be told the reason an accommodation was 
granted? Should the nature of the disability be revealed? 
Do unions have special disclosure rights? 



"The employer cannot disclose the nature 
of a disability except in limited ways: to 
management involved in the reasonable 
accommodation process; to safety/first aid 
officials; and to government officials con- 
ducting an investigation - not to co-workers, 
not to unions." 



These were among the issues explored at a conference 
of the President's Committee on Employment of People 
with Disabilities in Atlanta. Four attorneys agreed that the 
ADA requires strict confidentiality on disability-related 
information. 

"The ADA is very clear," said lawyer Jonathan R. 
Nook, a partner with Ogletree, Deakins, Nash, Smoak & 
Stewart. "The employer cannot disclose the nature of a 
disability except in limited ways: to management in- 
volved in the reasonable accommodation process; to 
safety/first aid officials; and to government officials con- 
ducting an investigation - not to co-workers, not to 
unions." 

Even if disability-specific information isn't disclosed, 
however, co-workers who attain knowledge of an ac- 
commodation might naturally assume that the employee 
has a disability. Peggy N. Mastroianni, director of the 
Equal Employment Opportunity Commission's ADA 
Policy Division, addressed three different scenarios: 

• Can you tell co-workers about another employee's 
disability? "No, with no exceptions," she said. 

• Can you tell co-workers that an employee can per- 
form certain tasks but not perform others? "Maybe," 
Mastroianni said. "That information is not necessarily dis- 
ability-related." 

• Can you tell co-workers that the employee needs rea- 
sonable accommodation? "Again, maybe," she said. 
"We're still arguing about that." 

To qualify for reasonable accommodation, an em- 
ployee must be able to perform the essential functions of 
the job. But in granting the accommodation, "marginal" 
job functions may be shifted to other employees. This no 



26 



doubt raises curiosity in workers and perhaps some ani- 
mosity, too. 

"Many accommodations have a psychological impact 
on other workers," said attorney Stephen M. Koslow. 
"Employee morale is a very important quality to be nur- 
tured and maintained. Equity in the distribution of work 
is important to employees." 

Mastroianni said the statute distinguishes between ac- 
commodations that have a negative psychological effect 
on other employees and accommodations that affect 
other employees' ability to produce. "Poor morale alone 
is not an undue hardship," Mastroianni said. "On the 
other hand, in certain cases reasonable accommodation 
may have an effect on others' ability to work." 

To head off resentment against the accommodated em- 
ployee, Mastroianni urged employers to state clearly to 
workers - when they are hired - that the company must 
comply with federal law. "Put it in the employee hand- 
book," she said. "Workers should be prepared to see 
other workers with different arrangements in compliance 
with federal law." 

Unions add another player into the mix. According to 
Mary K. O'Melveny, headquarters counsel for Communi- 
cations Workers of America, an employer has an obliga- 
tion to consult with the union - especially if the 
accommodation affects major terms of employment like 
hours and wages. But since the ADA is essentially silent 
on the role of unions in accommodations, such disclo- 
sure could be viewed as a breach of the law's confidenti- 
ality standards, O'Melveny said. 

The National Labor Relations Board (NLRB) stated that 
employers must balance the union's need for information 
against the privacy of individuals. 

"NLRB loves balancing because that means they don't 
have to make a decision," said Dion Y. Kohler of 
Ogletree, Deakins, Nash, Smoak & Stewart. "That's great 
for a judicious board because they can take each case in- 
dividually. But as an employer, that puts you in a danger- 
ous guessing game." 

Mastroianni said the EEOC and NLRB began meeting 
two years ago to resolve differences between the two fed- 
eral laws, but talks broke off with only "a memorandum 
of understanding" produced. 

One remaining issue can render much of the discus- 
sion moot: What if the person with a disability who is 
being accommodated voluntarily discloses the informa- 
tion to workers and the union? 

"There's nothing in the ADA that prevents a person 
from disclosing" information about a disability, 
Mastroianni said. "But disclosure is a very difficult issue, 
and a very personal one. Once disclosure is made, many 
of these issues go away." 

Disability Compliance BullepiJ © 1 994 





Advice on telecommuting as 
an accommodation 

For many, the answer to lengthy commutes made 
more difficult by physical disabilities is the dream 
of telecommuting. And some courts have found 
telecommuting to be a reasonable accommodation. 
A Telecommuting Program Development Handbook 
from Southwestern Bell Telephone's HomeOffice 
Service tells how to develop a proposal, conduct an 
evaluation survey, assemble a telecommuting 
team, perform a cost/benefit study, develop proce- 
dures, and train supervisors and telecommuters. 
Call Chrisie LaPoint, (314) 235-3910. 

Emergency procedures 
addressed by FEMA 

Are you reluctant to hire people with disabilities 
because of concerns about safety and evacuation in 
an emergency? Now there is a third reason why 
you should get over that hesitation. (The first two 
are that it is illegal and causes you to lose out on 
many good employees.) The Federal Emergency 
Management Agency (FEMA) has published an ex- 
cellent resource called Emergency Procedures for 
Employees with Disabilities in Office Occupan- 
cies. This 26-page booklet is clear, thorough and 
sensitively written. It offers help on assessing your 
situation and developing a plan of action. A limited 
number of copies are available from the Great 
Lakes Disability and Business Technical Assistance 
Center, (800) 949-4ADA, for a minimal postage and 
handling charge. 

Stop by your library 

Access to ADA information is as easy as a trip to 
your local library. The U.S. Department of Justice 
sent an ADA Information File containing 35 techni- 
cal assistance documents to more than 15,000 
libraries. In addition to the act itself, regulations 
and technical assistance manuals, the file contains 
industry-specific materials for restaurants, super- 
markets, health care facilities, hotels/motels, child 
care facilities, car sales/service, fun/fitness centers 
and retail stores. Also included are materials about 
communication access, state and local govern- 
ments, and other ADA resources. Most libraries 
keep the file at the reference desk. 

For more information on contacting the DOJ, see 
page 82. 



27 



Reassignment is a form of 
accommodation in Ohio case 

A trial court wrongfully ruled against a former city em- 
ployee who alleged that he was terminated from employ- 
ment in violation of Section 504 and Ohio state law, an 
appellate court in Ohio has decided. The appellate court 
found that the trial court erred when, among other things, 
it ruled that reasonable accommodation under the state 
law does not encompass reassignment to a vacant posi- 
tion {Wooten V. City of Columbus). 

In the case, a city mechanic with a hearing impairment 
and a history of hernia injuries alleged that his employ- 
ment was terminated on the basis of disability, in viola- 
tion of Section 504 and state law. The mechanic position 
required the ability to exert up to 100 pounds of force 
occasionally, 50 pounds of force frequently and up to 20 
pounds of force constantly. After a third operation, the 
employee's physician placed a permanent 20-pound lift- 
ing restriction on that employee's activities. A trial court 
granted the employer's motion for summary judgment, 
and the employee appealed. 

First, the appellate court found that the lower court 
erred when it determined that the employee was not 
handicapped within the meaning of Section 504; the evi- 
dence showed that the employee's hernia injuries limited 
his major life activities. Similarly, as to the state law 
claim, the evidence supported a finding that the em- 
ployee was substantially limited in his ability to hear and 
to perform manual tasks. In addition, a factual issue ex- 
isted as to whether the employee was terminated for a 
nondiscriminatory reason. Finally, the trial court wrong- 
fully ruled that reassignment to a vacant position was not 
a form of reasonable accommodation under state law. 
The decision of the lower court was reversed. 

Disability Compliance Bulletin © 1 993 

Bargaining agreement conflict 

An employer is not required to make an accommoda- 
tion for a worker with a disability that would violate an- 
other employee's rights under a collective bargaining 
agreement, according to the U.S. District Court for the 
Western District of Michigan. In Pattison v. Meijer, a 
night-shift employee suffered a head injury in a motor- 
cycle accident, which resulted in a seizure disorder. He 
asked the employer to reassign him to daytime work, ex- 
plaining that he could not safely drive to work at night. 
He said flashing lights can induce seizures and his 
medication's side effects increase when he drives at 
night. 

The employer refused, saying there was no vacant day- 
time position available. In addition, the employee was 
second in seniority under the labor contract, and reas- 
signing him would violate the senior employee's rights. 

From BNA's ADA Manual © 1995 



^CCwitl 



Accommodations for firefighter 
would cause undue hardship 

A county fire department did not violate the 1973 Re- 
habilitation Act when it discharged a firefighter who had 
asthma and needed to use an inhaler, the U.S. Court of 
Appeals held in Huber v. Howard County, Md. 

When a volunteer firefighter applied for a career posi- 
tion, he reported to a county physician that he had a his- 
tory of "childhood" asthma and used an inhaler known as 
a bronchodilator. He was accepted into a training pro- 
gram, but was ordered to report for further medical evalu- 
ation when he failed to complete a required 1 V2 mile run. 

Although his treating physician said the employee 
"most likely" could perform the duties of the job with 
medication, a pulmonary specialist chosen by the county 
strongly recommended against his being hired as a 
firefighter. The employee presented an additional opin- 
ion from an occupational specialist suggesting that the 
employee could be accommodated if his supervisors 
monitored his condition at the beginning of each work 
day. After an administrative hearing, the employee was 
discharged and filed a disability discrimination suit in 
federal district court, which granted summary judgment 
to the county. 

Upholding the summary judgment, the appeals court 
found that the employee's proposed accommodations 
were not reasonable and would cause the county undue 
hardship. 

From BNA's ADA Manual © 1995 

Meeting time change required 

In Dees v. Austin Travis County Mental Health and 
Mental Retardation, the U.S. District Court for the West- 
ern District of Texas ruled that a local agency that pro- 
vides community services for persons with mental 
disabilities must change the early morning hour of its 
board meetings. 

The suit was filed by Mary Dees, who takes prescribed 
medications to treat her mental illness. Some of the medi- 
cations taken by Dees, who is an advocate for the rights 
of persons with mental illness, have a sedative side ef- 
fect. As a result, her ability to function before 10 a.m. is 
limited. Dees alleged that Austin Travis County Mental 
Health and Mental Retardation (ATCMHMR), a commu- 
nity center that provides mental health and mental retar- 
dation services, violated Title II of the ADA by holding 
monthly board of trustees meetings at a time (8 a.m.) that 
made them inaccessible to people with certain types of 
mental illnesses. 



r' 



28 



U.S. District Judge Sam Sparks agreed. The judge re- 
lied on a Title II implementing regulation which requires 
public entities to make reasonable modifications when 
necessary to avoid disability discrimination - unless 
making the modifications would fundamentally alter the 
nature of the affected service, program or activity. 
ATCMHMR did not show that moving the meetings to 9 
a.m. or later would fundamentally alter the nature of the 
board or create an undue administrative or financial bur- 
den. Judge Sparks ruled. The decision concluded that 
moving the board meeting to 9 a.m. or later was a rea- 
sonable accommodation under the ADA. 

Disability Compliance Bulletin © 1994 

No requirement to create 
permanent 'light duty" positions 

An employer is not required under the ADA to create a 
light-duty position or to convert a temporary light-duty 
position into a permanent one, a federal district court has 
held in Moft v. Synthetic Industries. 

An employee whose work involved heavy lifting in- 
jured his lower back and was assigned to "light duty" for 
a month, after which he was placed on an unpaid leave 
of absence. Seven months later, his doctor told the em- 
ployer that the employee still could not return to his regu- 
lar job, but could return to "light work status" that 
required no heavy lifting or bending. Eventually, the em- 
ployee was assigned to a less demanding job, but in the 
meantime he had filed a lawsuit, alleging that the com- 
pany failed to accommodate him. 

The court cited the EEOC Technical Assistance Manual, 
which states that the ADA does not require an employer 
to create light duty positions. In this case, the employer 
did not have any permanent light duty positions; rather, 
its policy was to provide temporary light duty jobs. 

From BNA's ADA Manual © 1 995 

Employer need not provide 
assistance in commuting 

An inquirer asked the EEOC whether the ADA requires 
an employer to assist an employee with a disability in 
transferring from his automobile to a wheelchair when he 
arrives at work. The EEOC responded by explaining that 
the ADA requires employers to eliminate barriers that 
exist in the work environment, and not ones that exist 
outside the work environment. Transferring from an auto- 
mobile to a wheelchair upon arrival at the workplace is 
part of the process of commuting, the response contin- 
ued, and an employer does not have to provide assis- 
tance to an employee with a disability in transferring 
from an automobile to a wheelchair unless the employer 
provides assistance for employees without disabilities in 
getting to and from work. 

From Disability Compliance Bulletin © 1 995 



// 



Good Faith 



// 



Many people know that the Civil Rights Act of 
1991 established compensatory and punitive dam- 
ages that may be assessed against an employer for 
acts of discrimination under the ADA. It has not 
been widely understood, however, that the same 
statute includes an important protection for em- 
ployers called "Reasonable Accommodation and 
Good Faith Effort" (Section 102). Under this provi- 
sion, an employer who is found to have discrimi- 
nated by not providing a reasonable accommodation 
will not be subject to damages when it can show 
that it made a good faith effort to accommodate. 
Consulting with the Job Accommodation Network 
(see page 25) could be part of an employer's evi- 
dence that it did make a good faith effort. - D.C. 



Weekend work can be required 

The Office for Civil Rights (OCR) has rejected a switch- 
board operator's claim that her employer did not reason- 
ably accommodate her multiple disabilities. The 
employee had multiple sclerosis and a hearing impair- 
ment, and was legally blind. She sought to be excused 
from working on Saturdays because she wanted to spend 
time with her guide dog and because the public transpor- 
tation she used did not provide regular Saturday service. 

With respect to the reasonable accommodation issue, 
OCR found that the library did not violate Section 504 or 
Title II of the Americans with Disabilities Act. Although 
the employee asked that she be excused from working on 
Saturdays, all part-time staff members were subject to 
working weekends. Further, the library accommodated 
the employee by not requiring her to work on Saturdays 
until she could make transportation arrangements. 

OCR did find that the library's employment application 
violated both Section 504 and Title II because it required 
applicants to consent to taking a medical examination 
before an offer of employment was made. 

From Disability Compliance Bulletin © 1 993 



Enforcement of Title I of the ADA occurs 
through the U.S. Equal Employnnent Oppor- 
tunity Commission. The Ohio Rehabilitation 
Services Commission publishes this mate- 
rial for informational purposes only. 



29 



HIV accommodations also 
support other employees 

The interviewer stands by her office window looking 
out over the company parking lot, shaking her head. The 
applicant who just left doesn't hear her muttering, half 
aloud, "The guy has HIV - I almost wish he hadn't told 
me. What the hell do I do now?" 

Frequently, employers expect that people with HIV will 
be difficult to accommodate in the workplace. This mis- 
conception is based not on cost figures, but a lack of 
knowledge of available workplace accommodations and 
resources. 

Throughout history, the disabilities most strongly asso- 
ciated with fear and stigma have also been the most mis- 
understood, incurable, and/or contagious, such as 
epilepsy, cancer, mental illness and AIDS. The fear and 
stigma of HIV can be decreased through education and 
experience with people who have HIV, leading to a bet- 
ter understanding of the disability. 

Employers should also be aware that co-workers often 
find it difficult to deal with the episodic nature of HIV or 
any life-threatening disability, especially when just yes- 
terday the person may have appeared to be healthy. Su- 
pervisors and staff need ongoing education to inform and 
sensitize them. A recent survey* found that 75 percent of 
employees wanted their employers to provide AIDS edu- 
cation in the workplace, while only 28 percent received it. 

Accommodations may be social or functional 

Many accommodations are inexpensive and require 
only operational changes, rather than equipment or 
structural modifications. Employers may be able to ac- 
commodate employees with HIV through the following 
emotional supports. 

• on-the-job peer counseling; 

• praise and positive reinforcement; 

• tolerance of different behaviors; 

• counseling or employee assistance programs for diffi- 
culties (stress, disability, family issues); 

• allowing telephone calls during work hours to friends 
or others for needed support; 

• substance abuse recovery support groups and one-to- 
one counseling; 

• support for people in the hospital (e.g., visits, cards, 
telephone calls); 

• an advocate to advise and support the employee; 

• identification of employees willing to help the em- 
ployee with a psychiatric disability (mentors); and 

• on-site crisis intervention services or a 24-hour hot- 
line for problems. 

Employers may need to accommodate people who de- 
velop a sensitivity to light from cytomegalovirus retinitis, 
a viral infection of the retina, which leads to gradual 
blindness. Other eye infections and side effects from 
some medications may impair vision or increase a 
person's light sensitivity. A variety of infections of the 



brain and nervous system may damage the optic nerve. 
Suggestions include: 

• using low-watt overhead lighting with desk lamps; 

• filtering overhead fluorescent lights; 

• providing printed materials with large print and good 
contrast; 

• providing a darkened room as a rest area; and 

• using computers that have color monitors with ad- 
justable contrast and allowing 15-minute breaks 
from the terminal every two hours. 

All employees benefit from stress reduction 

Social support and job control are two resources that 
can moderate the negative impact of work-related de- 
mands and pressures on the health of all employees with 
or without a disability. 

Social support includes help that an employee receives 
from social ties to people both at work and outside work. 
Control is the ability to exert influence over one's envi- 
ronment so that it becomes more rewarding and less 
threatening, lob control is the ability to influence the 
planning and execution of work tasks with a focus on or- 
ganizing work and providing resources to help workers 
meet the demands of production. 

Various work elements impact on employees' mental 
and physical well-being. Over 30 percent of adults report 
high stress every day, and even more once or twice a 
week. A 1991 Northwestern National Life Insurance 
study reported more than one-third of people surveyed 
were considering changing jobs because of job stress. 
The consequence of such stress is reflected in the in- 
creasing number of workers' compensation claims asso- 
ciated with psychological disorders. Therefore, it is 
critical that employers address the issues of employee 
mental health. 

As an employer, it is important for you to create an in- 
dividualized and flexible work environment for all em- 
ployees. Whenever possible, adapt a work environment 




Portions of the above article are from "Work-site 
Accommodations for People with HIV" and "Rea- 
sonable Accommodations for Persons with HIV Ill- 
ness." Both were written by the President's 
Committee on Employment of People with Disabili- 
ties and include many other accommodation ideas. 
Order from the President's Committee, 202-376- 
6200 voice or 376-6205 TTY, or from the Great 
Lakes Disability & Business Technical Assistance 
Center, 1-800-949-4ADA voice/TTY. 

*The survey mentioned was funded by the Centers for 
Disease Control and Prevention, The Principal Financial 
Group and Levi Strauss Foundation 



30 



to fit a particular person, whether that person has HIV or 
no disability - it is safer and more efficient. To accommo- 
date individual strengths and preferences, communicate, 
be flexible and provide a range of work method options. 
Use ergonomics and common sense as a basis for the de- 
sign of individualized work stations. 

So, if you find yourself staring out the window of your 
own interview room, wondering what your next step 
should be, remember you don't have to become an ex- 
pert on all disabilities to make appropriate accommoda- 
tions. It's not even possible. Once you are comfortable 
with the ADA'S basic principles, you will see how they 
mesh with sound workplace practices that apply to all 
employees - particularly treating each person as an indi- 
vidual. 

- D.C. 

Sears is standing up for the act 

First of all, this is not a commercial plug for Sears, Roe- 
buck and Co. However, some good things have appar- 
ently been going on at Sears that must not be kept secret. 
A case report on the company's experiences in accom- 
modating workers with disabilities exemplifies how the 
law benefits both employers and employees. 

And just in time. I have grown weary of the ADA 
doomsayers - those negative newspaper articles or "in- 
vestigative/entertainment/news" programs on television 
which assail the many abuses of the law. Are these valu- 
able exposes? Rarely. 

They're too easy. Pick a law (most any will do) and re- 
port on every outrageous case of 
abuse you can find, regardless of 
how small a view of the whole 
picture it might represent. Then 
conclude that the law is a com- 
plete perversion, proving once 
again that all government is use- 
less at best, destructive at worst. 
Too easy. And not accurate. 

The rest of the story needs tell- 
ing - workplace accommodations can be and have been 
done that do not bankrupt the treasury. These accommo- 
dations create and retain valuable employees. We've 
heard these claims over and over, but now there is new 
evidence to back them up. The Annenberg Washington 
Program in Communications Policy Studies of Northwest- 
ern University has published Communicating the Ameri- 
cans with Disabilities Act, Transcending Compliance: A 
Case Report on Sears, Roebuck and Co. It is highly rec- 
ommended reading. 

Perhaps the language of the law does a disservice to 
some purposes. Employers have always provided some 
reasonable accommodations, but usually thought of it 
simply as "retaining valuable staff." Unfortunately, rea- 
sonable accommodation sounds like something new and 
scary, no doubt expensive. On the contrary, the accom- 



modations at Sears for the period 1978-1992 reveal the 
following, taken directly from the Annenberg report: 

Total number 436 (100%) 

Required no cost 301 (69%) 

Cost less than $1,000 122 (28%) 

Cost more than $1,000 13 (3%) 

Average cost per accommodation - $121.42 
Most striking is the finding that almost all accommoda- 
tions at Sears (97 percent) require little or no cost. In fact, 
if you subtract those 1 3 accommodations costing $1 ,000 
or more, the average cost drops to $36.01 for the remain- 
ing 423. Such accommodations include flexible schedul- 
ing, longer training periods, back-support belts, revised 
job descriptions, rest periods, enhanced lighting, ad- 
justed work stations and supported seating. 

Sears CEO Edward Brennan expresses it this way: 
"Over the years, Sears developed a corporate culture that 
said, 'Do the right thing for our customers and employ- 
ees.' We've never had a formal program to deal with em- 
ploying people with disabilities. We give jobs to people 
who can do those jobs. We don't focus on what people 
can't do. We focus on what they can do." 

Sounds too good to be true, doesn't it? Undoubtedly 
any organization the size of Sears has had some failures, 
but these results are persuasive. Consider the last of "Five 
Core Implications for the 21st Century," outlined in the 
Annenberg report's concluding section: 'Tar from creat- 
ing onerous legal burdens, the ADA can provide employ- 
ers and employees with a framework for dispute 
resolution and litigation avoidance, not the explosion of 
litigation that some observers predicted." 




Most striking is tine finding ttiat almost all 
accommodations at Sears (97 percent) 
require little or no cost. 



Sears' has had only six ADA-related employee lawsuits, 
this out of a total workforce with disabilities estimated at 
20,000. The report suggests that this extraordinary record 
results from the "do-the-right-thing" corporate culture 
and a formal commitment to alternative dispute resolu- 
tion, which uses mediation to resolve disagreements. 

Sears' experience with accommodations and the cor- 
porate philosophy described above, along with many 
other valuable insights included in the report, deserve to 
be shared with a wide audience. Though based on only 
one company's history, this report offers a glimpse into 
the future of ADA that, despite today's politically fashion- 
able negativism, looks surprisingly bright. 

This report and other Annenberg publications are on 
the internet at: http://www.annenberg.nwu.edu. 

- D.C. 



31 



In the Blink of an Eye 



What business leaders 
still don^t understand 

By lasen M. Walker, Ed.D., president and director of 
services, and Fred Heffner, Ed.D., director of program 
development, CEC Associates Inc., a disability manage- 
ment and prevention company with locations in 
Pennsylvania and Florida. 

There are those of us who are visually impaired, and 
there are those who cannot see, even with perfect vision. 
Who is to say who has the greater social handicap? 

Corporate America still does not get it! Corporate 
America does not understand the real power of the 
Americans with Disabilities Act (ADA). The obliviousness 
of business leaders to the ADA 
may be the result of limited experi- 
ence with individuals who have 
disabilities. Without requisite ex- 
perience with individuals who are 
physically or mentally challenged, 
corporate decision-makers will not 
understand. They cannot under- 
stand. They will be unable to see 
the true value of the ADA. 

We recall vividly an event that 
we think illustrates the point. It oc- 
curred in September of 1 991 ; a beautiful summer evening 
in Orlando, Fla. We were there to deliver an ADA presen- 
tation to a group of risk managers. They had gathered to 
discuss how their organizations might control workers' 
compensation and other insurance-related costs. 

Just after the customary business meeting but before 
our presentation, the president of this association intro- 
duced one of its members who had requested special 
time to address his colleagues. 

Harry, a risk manager for over 30 years and a member 
of this particular association for 20 years, stood up to say 
good-bye to the group. He announced that he had carci- 
noma and his colon cancer was now invading other or- 
gans. The cancer was, in fact, killing Harry. But he 
wanted his associates to know that he loved his work. He 
shared his warm regard for them and conveyed that if "by 
chance" he did not make it back to Orlando for the next 
year, he would truly miss them. In a selfless moment. 







Harry genuinely encouraged everyone, particularly the 
older men in the group, to have annual colorectal exami- 
nations. He lamented that he had not. 

But Harry ended his shocking disclosure and tearful 
good-bye with reporting that his employer had proposed 
separating him from work; putting him out "on disabil- 
ity," as was the organization's policy. He most regretted 
this, he said, because he truly wanted to work. He knew 
he had the strength to do so. Harry feared the thought of 
being removed from work only to go home and wait for 
death. Harry quietly dismissed himself. The room was 
stone silent. Torn between the tragedy of Harry's message 
and our egocentric desire to take advantage of the 
"teaching moment," we proceeded to the lectern. 




With suddenness that mocks the blink of an 
eye, biomechanical forces can crush the 
cervical vertebrae of an auto accident victim 
.... o blood vessel in your head can burst.... 
a normal cell can become malignant. None 
of us are immune to events that con per- 
manently change our individual worlds.... 



To this day, we are not sure if anyone really heard our 
message at that meeting. It was hardly any time for the 
people in the room to use their cerebrums; our hearts still 
went out to Harry. But Harry's message was our message 
too. In the blink of an eye, the importance of the ADA 
had hit home to a man who for 30 years had been making 
decisions about the re-employment of injured and ill 
workers. In the blink of an eye, the real power of the 
ADA also hit home for us, the so-called "experts." 

The "blink of an eye," a unit of time measured roughly 
as .06 seconds, has both spiritual significance and practi- 
cal implications. Theologians tell us that in this brief pe- 
riod of time, conception takes place, and a new 
generation begins. In the blink of an eye, we lost John F. 
Kennedy. And the world changed. In the blink of an eye, 
jim Brady's life was changed. 

With suddenness that mocks the blink of an eye, bio- 
mechanical forces can crush the cervical vertebrae of an 










32 



auto accident victim and cause a driver or passenger per- 
manent paralysis. A blood vessel in your head can burst 
in the blink of an eye and leave you hemiplegic, unable 
to use your dominant hand ever again. In the blink of an 
eye, a normal cell can become malignant. None of us are 
immune to events that can permanently change our indi- 
vidual worlds in ways that we cannot imagine or see, all 
in the blink of an eye. 

It took the American public over 17 years (the time it 
takes to blink one's eye billions of times) to bring portions 
of the Rehabilitation Act into the private sector. From all 
appearances, it will take many years more to change or- 
ganizational behavior so that the ADA and its concepts 
are fully embraced and practically implemented. 

We have heard business leaders give many reasons for 
why their companies have not yet embraced either the 
spirit or the practical aspects of the ADA. Some execu- 
tives tell us that the law is too vague. Others suggest that 
they will wait for court decisions to refine the ambiguities 
in the act, and some even imply they plan not to change 
until some action is brought against them! 

Some business leaders have relegated ADA policy- 
making to their human resource departments, ignoring 
the potential that the ADA has to significantly impact 
comprehensive risk and medical costs for the company. 
Unfortunately, nearly all business executives and manag- 
ers with whom we have consulted rely heavily on the in- 
put of lawyers to shape their response to the whole issue 
of employing individuals with disabilities. Rather than 
making a top-level decision to be pro-active in reaching 
out to the pool of qualified applicants and/or workers 
with disabilities for their companies, they rely on the ad- 
vice of counsel for ways to protect themselves against 
possible exposure to such individuals. 

Anyone empowered to make ADA compliance com- 
pany policy must fully realize that they themselves are 
but a blink of an eye away from needing the protection 
that the ADA affords everyone. 

It is important to remember that virtually every Ameri- 
can, regardless of race, ethnic background, educational 
level, income or power to make corporate policy, has or 
will have some direct connection to people with disabili- 
ties. Therefore, all of us have a personal interest in assur- 
ing equal employment opportunities for Americans with 
disabilities. As we age, we have a 25 percent chance of 
becoming physically or mentally challenged. Should we, 
during our work lives, experience an alteration in our 
functional capacities, we would want ADA protection. 



Speaking in 1987, syndicated columnist George Will 
emphasized the universal importance of ensuring equal 
opportunities for disabled persons: The most striking fact 
about the [disabled population] is that it is the most in- 
clusive. There is a sense in which we live in the ante- 
chambers of the handicapped community. I will never be 
black and I will never be a woman. I could be handi- 
capped on the drive home tonight. 

Although his language may not be politically correct, it 
is obvious that George Will realizes what we want most 
business executives to understand - that they too poten- 
tially can require the protection of the ADA. As individu- 
als committed to enhancing the general public's 
awareness of issues related to people with disabilities, 
particularly full employment, we must constantly remind 
corporate decision-makers of Mr. Will's awareness. 

Back in 1 991 , when we were the recipients of the risk 
manager's profound lesson to all of us, there was much 
ado about the ADA. Soon the fuss subsided. Business 
leaders eventually stopped attending seminars, and un- 
fortunately, they ceased considering implementing 
change in their organizations. Managers are now waiting 
for lawsuits and court decisions to force their hands. Un- 
fortunately, we have never been successful in this country 
in either legislating or litigating morality. Effective 
change will not come through the courts. 

Corporations will respond when we show them the 
considerable cost benefits to employers who comply with 
the ADA. Organizations can save enormous sums of 
money by hiring qualified people who want to work. 
Companies can reduce the total cost of workplace dis- 
ability by returning people to gainful activity with "rea- 
sonable accommodation." Companies must forego the 
so-called "light duty" mentality, the insidious welfare 
equivalent of "making work for others," and provide job 
modifications of essential functions based on an 
individual's residual capabilities and strengths rather 
than focusing on weaknesses. 

Risk managers and human resource people can be en- 
couraged to cooperate and vocationally rehabilitate em- 
ployees with impairments, regardless of the source of 
those impairments (i.e., work-related or not). But, until 
corporate board members and top-level executives un- 
derstand what George Will and Harry, the risk manager, 
understood, we will have made little progress in actualiz- 
ing Title I of the ADA. Our mission is to help those busi- 
ness leaders see - in the blink of an eye. 

From In the Mainstream, March/April 1995 








33 



Direct Threat 



There is a persistent myth that the ADA is an employ- 
ment law, that it requires the hiring or retaining of people 
with disabilities without regard to their suitability for 
particular jobs. In fact, people with disabilities occasion- 
ally ask me to use the ADA to get back jobs they recently 
lost. No wonder some employers believe they have no 
choice. 

But that is not the case. ADA's purpose is to remove 
discrimination so that people with disabilities have an 
equal opportunity to compete for and perform in jobs. 
Nevertheless, employers may still require as a qualifica- 
tion standard that employees not pose a "direct threat" to 
the health or safety of co-workers or themselves. 

Making the determination 

The federal Equal Employment Opportunity Commis- 
sion (EEOC) has stated that an employer should be able 
to show all of the following about the risk that a particu- 
lar person presents: 



• high probability of substantial harm - Is there con- 
siderably more than just a slight risk? 

• specifically identified risk - What exactly is the risk? 
How long will it last? How severe would the harm 
be? How likely is it to happen? 

• current risk - Does this risk exist now? Is it specula- 
tive? Remote? 

• objective evidence - Is this determination being 
made on impartial information? (In other words, has 
it avoided unfounded assumptions, fears, stereotypes 
or patronizing expectations about a person's endan- 
gering himself or herself?) 

• reasonable accommodation - Is it possible to reduce 
the risk to an acceptable level? 

So what does all this mean? To avoid risk, an employer 
must take this determination seriously. EEOC's own 
words to describe the above criteria state that an em- 
ployer must meet "very specific and stringent require- 
ments" to establish direct threat. Yet their guidance, for 
all its length, is somewhat less than specific. So the pri- 
mary ADA principle needs to be applied here just as it 
does throughout the ADA - every situation must be 
viewed individually, case by case. 



Man who is insulin-dependent 
should continue as driver 

A policy that prohibits insulin-dependent diabetics 
from operating motor vehicles on public highways vio- 
lates the ADA, the U.S. District Court for the Western 
District of Oklahoma has held in Sarsycki v. United Par- 
cel Service. After he was diagnosed as having insulin- 
dependent diabetes, Sarsycki was transferred from his 
position as a full-time package car driver with United 
Parcel Service (UPS) to a part-time car washer job. He 
contended that UPS' refusal to allow him to maintain 
his driver job violated the ADA. The court agreed. 

UPS argued that its policy was required by the De- 
partment of Transportation (DOT) regulations. The court 
rejected this argument, concluding that the regulations 
barring insulin-dependent diabetics from driving motor 
vehicles do not apply to vehicles under 10,000 pounds, 
such as the one that Sarsycki drove. UPS also con- 
tended that its policy was justifiable based on the same 
safety concerns behind the DOT policy. The court re- 
jected this contention because UPS had failed to show it 
had either conducted an individualized assessment of 
Sarsycki's abilities or determined that he posed a direct 
threat to the health and safety of others. The court con- 
cluded that Sarsycki should be returned to his previously 
held driver position with the reasonable accommodation 
that food be within his reach in the vehicle and that he 
carry neither passengers nor hazardous materials. 

From ADA Compliance Guide © 1 994 



Waiver denied for truck drivers 

Three truck drivers who are deaf are not entitled to a 
waiver of the Federal Highway Administration's (FHWA) 
requirement that interstate drivers of commercial motor 
vehicles be able to hear, the U.S. Court of Appeals for 
the District of Columbia Circuit has ruled in Buck v. 
U.S. Dept. of Transportation. According to the court, the 
drivers applied to the FHWA for waivers of the hearing 
regulation, arguing that the regulation violates Section 
504 of the 1973 Rehabilitation Act by excluding indi- 
viduals with disabilities on the basis of an absolute stan- 
dard, rather than allowing for individualized assessments 
of their ability to drive a truck safely. 

Denying the drivers' petitions for review of the agency's 
decision, the court cited a provision of FHWA regula- 
tions stating that a person is "physically qualified" to 
drive if, among other things, the person "first perceives 
a forced whispered voice in the better ear at not less 
than five feet with or without the use of a hearing aid." 
Once an individual has admitted that he cannot meet 
that standard, "the Rehabilitation Act does not forbid 
the application to him of a general rule," the court said. 

The proper forum for the drivers to obtain relief is the 
FHWA in a proceeding to modify or repeal the rule it- 
self, the court said, noting the agency is conducting 
such a rule-making. Moreover, the court said, the Mo- 



34 



Blanket policies 

Do away with blanket policies. An EEOC lawyer once 
stated that "almost every blanket policy will be illegal." 
Some examples are: A person with cerebral palsy can't 
perform lab work. A person with epilepsy can't drive a 
fork lift. A person with mental illness can't do deadline- 
intensive publishing. 

An employer with a policy (or even an informal prac- 
tice) that resembles any of these examples is taking an 
unnecessary gamble. A Michigan employer found out the 
hard way when it abruptly fired a new employee after 
learning he had epilepsy. The evidence in the case 
showed that the man had not had a seizure for over 10 
years. A court found the employer guilty of discrimina- 
tion and levied a stout fine. 

Objective evidence 

Employers must make reasonable judgments based on 
the most current medical/psychological knowledge and 
the best available objective evidence. Sources can in- 
clude: 

• the person who has the disability (including informa- 
tion about experience in previous jobs); 



• health professionals (doctors, psychologists, physical or 
occupational therapists); and 

• others with expertise in the disability or with direct 
knowledge of the individual (such as rehabilitation 
counselors). 

Threatening behavior 

Here is the EEOC's complete, official guidance on this 
subject: 

Where [sic] the psychological behavior of an employee 
suggests a threat to safety, factual evidence of this behavior 
also may constitute evidence of a "direct threat." An 
employee's violent, aggressive, destructive or threatening 
behavior may provide such evidence. 

There is no intent within the ADA to require employers to 
forgive violence or even threats in the workplace. Despite 
that, when a disability is present along with such behaviors, 
an employer will be concerned about legal liability under 
the ADA. So the best advice to an employer is this: Don't 
jump to conclusions. Thoughtfully and carefully consider 
the questions listed under "Making the determination" on 
previous page. Seek counsel from experts. 

Please see "Discipline of workers who break conduct 



tor Carrier Safety Act specifically forbids the FHWA from 
waiving any of its regulations without "evidence" that 
doing so "is consistent with the safe operation of com- 
mercial motor vehicles." The court concluded the 
FHV^A was not unreasonable in refusing to grant indi- 
vidual exceptions to an established safety rule. 
From BNA's ADA Manual © 1995 

Termination of guard with 
one hand violated ADA 

Disabled license applicants must be given consider- 
ation on a case-by-case basis to accurately determine 
what risks, if any, they pose to themselves or the pub- 
lic, the U.S. District Court for the Western District of 
Missouri has held. This case is St/7/we// v. Kansas City, 
Mo., Board of Police Commissioners. 

Jimmie Stillwell, who has only one hand, had been 
licensed and registered with the Kansas City Police De- 
partment as a private security guard with authority to 
carry a firearm. In 1992, his application for licensing 
was denied because the Kansas City Board of Police 
Commissioners assumed that with only one hand he 
could not perform the duties of a police officer. 

The board contended that two hands are required to 
successfully perform such defensive tactics as handgun 
retention, lateral vascular neck restraint and handcuff- 
ing. It also maintained that a one-handed guard is more 
likely to use deadly force than a guard with two hands. 
Stillwell argued that the board's blanket prohibition on 



all one-handed applicants violated Title II of the ADA. 
The court agreed, finding that "the board's broad- 
sweeping rejection is based solely on an impermissible 
stereotype." 
ADA Compliance Guide © 1 995 

Asthma disqualified firefighter 

A Maryland district court has ruled on a summary 
judgment motion filed in an action by a firefighter re- 
cruit who alleged that a county refused to hire him as a 
full-time firefighter because he has asthma. 

The recruit attended sessions at the fire academy, but 
often became incapacitated during physical exercises. 
In Huber v. Howard County, Maryland, the court found 
that the county did not act unreasonably when it refused 
to allow the recruit to use an inhaler during training ex- 
ercises. The county had legitimate safety concerns about 
the inhaler, since it could not be used or stored near an 
open flame. The county was also concerned with how 
the recruit could use an inhaler at a fire scene, given all 
the equipment that a firefigher wears. In addition, it 
would impose an undue hardship on the county to re- 
quire other firefighters to monitor the recruit's condition, 
as suggested by his physician. Further, providing the re- 
cruit with extra disability days would pose an undue 
burden on the county, as it would affect staffing and 
hours of the other firefighters. 

The court entered summary judgment for the county. 

From Disability Compliance Bulletin © 1 994 



35 



rules discussed" on next page for remarks by former 
EEOC policy attorney David Fram.) 

Food handling 

The concept of direct threat includes the following spe- 
cific provision: A person with an infectious disease that is 
transmittable through handling food must be accommo- 
dated, when possible, to remove the risk; if the risk can- 
not be removed, the person may be dismissed or not 
hired to begin with. 

The Centers for Disease Control issues an annually up- 
dated list of such diseases along with information about 
how the diseases are transmitted. Only those diseases fit 
under this ADA provision. HIV/AIDS is not included on 
the list. Thus a person who is HIV-positive or has AIDS is 
not regarded as having a disability that prevents working 
in food handling jobs. 

Other health and safety laws 

Employers may continue to comply with other laws 
that set health and safety standards, although the ADA 
gives greater weight to federal than to state or local laws. 

Federal - An employer must comply with health and 
safety requirements of other federal laws and does not 
have to show that such requirements, if in conflict with 
ADA, are job-related and consistent with business neces- 
sity. Even when that is the case, an employer still must 
attempt to make reasonable accommodation to allow a 
person with a disability to perform a job, as long as such 
an accommodation does not violate the other law. 

State/local - When a state or local law excludes a per- 
son because of a health or safety risk, the employer still 
must assess whether the person will pose a direct threat 
under the ADA standard, and if so, whether a reasonable 
accommodation is possible that will reduce the risk. An 
employer may not rely on a state or local law that con- 
flicts with the ADA as a defense to a charge of discrimina- 
tion. 

Conclusion 

Employers need to realize that they continue to have 
the right to a safe workplace. They need not fear the 
ADA, nor be experts on disability. Help is available. 
They, and anyone who needs ADA information, are in- 
vited to call ADA-OHIO at (800) 784-9900 or the Great 
Lakes Disability & Business Technical Assistance Center 
at (800) 949-4ADA. 

In the end, employers must make their own determina- 
tions. However, knowledgeable people at these locations 
can discuss the intricacies of the law, offer referrals to 
other experts and help them explore options. 

* Mr. Fram's remarks were made in his private capac- 
ity. Although he was an attorney in the EEOC Office of 
Legal Counsel at the time, no official endorsement by 
EEOC should be inferred. 

- D.C. 



'CCW\Xi' 




Insubordination and subpar 
work motivated discharge 

Beverly Carrozza, who has bipolar affective dis- 
order, was fired from her job as a clerk typist with 
the Howard County, Md., Department of Public 
Works. After being transferred within the depart- 
ment, she received a written reprimand for insulting 
her supervisor, refusing to answer work-related 
questions and using obscenities. On one occasion, 
she dumped a bag of trash on a conference table 
while her supervisor was having a meeting. 

Carrozza alleged that her termination violated the 
ADA. A federal district court granted summary 
judgment for the county, and the Fourth U.S. Cir- 
cuit Court of Appeals affirmed. Although Carrozza 
was disabled, she was not qualified for the job, ac- 
cording to the court, because she was extremely 
deficient in working with the office computer and 
maintaining acceptable standards of conduct. 
Moreover, the county offered Carrozza extensive 
training to accommodate her. 

ADA Compliance Cuide © 1 995 

No injunctive relief for doctor 

A New York federal district court dismissed an ac- 
tion in which a physician with a history of alcohol- 
ism sought reinstatement to a high ranking position 
while the EEOC considered an ADA charge of em- 
ployment discrimination. 

In Altman v. New York City Health and Hospitals 
Corporation, the physician was relieved of his du- 
ties as a department chief after he was discovered 
drunk at work. He refused an offer to return as a di- 
vision chief, at a lower salary and with an in- 
creased degree of supervision, and chose instead to 
file an administrative complaint with the EEOC. 
While that charge was pending, he filed a federal 
action in which he sought a preliminary injunction 
to require reinstatement to his former position. 

The court acknowledged its inherent power to 
award temporary injunctive relief, in order to main- 
tain the status quo, prior to the EEOC's issuance of 
a right-to-sue letter. However, it found that it would 
be improper to award the injunctive relief sought in 
this case. First, the physician was not seeking main- 
tenance of the status quo; rather, he sought to alter 
the status quo by compelling reinstatement. More- 
over, the record did not show any likelihood that 
the physician would succeed on the merits. Finally, 
the physician's argument that he would suffer ir- 
reparable harm and public disgrace if the injunc- 
tion were not issued had "no weight whatsoever." 



36 




Workplace 
Conduct 



Discipline of workers who break 
conduct rules discussed 

Remarks by David K. Fram while an ADA policy attorney 
for EEOC (Fram is now with the National Employment 
Law Institute.) 

Employers are sometimes confused about the ADA's ef- 
fect on their ability to enforce workplace conduct rules. It 
is important to note that the Equal Employment Opportu- 
nity Commission has specifically stated that, "employers 
may hold all employees, disabled... and nondisabled, to 
the same performance and conduct standards." This 
means that an employer does not have to allow employ- 
ees to engage in misconduct on account of disability, al- 
though an employer may have to provide reasonable 
accommodation so that the employee can comply with 
the conduct rules. 

An employer can enforce its rules prohibiting an em- 
ployee from using or being under the influence of alcohol 
in the workplace without violating the ADA, even though 
current alcohol users who also are alcoholics have a pro- 
tected disability under the ADA. The ADA specifically 
states that employers may require that employees not be 
under the influence of alcohol in the workplace and hold 
an employee with alcoholism to the same performance 
and behavior standards to which the employer holds 
other employees, even if unsatisfactory performance or 
behavior is related to the alcoholism. 

For example, suppose an employee consistently comes 
in late on Mondays because of weekend alcohol abuse. 
An employer may enforce its tardiness policy and may 
discipline the employee in accordance with the policy. 
However, he warned, an employer may not disparately 
treat a qualified applicant or employee because of alco- 
holism. For example, if the employer would not disci- 
pline a nonalcoholic employee for being tardy, the 
employer may not discipline the alcoholic employee for 
being tardy. 

One question that frequently comes up is whether a 
drug addict who breaks the rules can, prior to discipline, 
enroll in a supervised drug rehabilitation program and 
claim ADA protection as a former drug addict who no 
longer illegally uses drugs. An argument that this person 
is protected by the ADA would probably fail. 

Rules concerning other workplace conduct can take a 
number of forms, such as rules against violence, rules 
concerning professionalism and rules concerning tardi- 
ness, Fram said. Employers may hold all employees, with 
and without disabilities, to the same conduct standards. 
However, an employer may have to provide reasonable 



accommodation so that an employee with a disability 
can comply with the conduct rules. 

Suppose that an employee has a rare, severe psychotic 
disorder which results in his punching a supervisor or 
threatening to stab a co-worker. An employer never has 
to condone violence - or the threat of violence - in the 
workplace, even if it is on account of someone's disabil- 
ity. An employer can discipline an employee with or with- 
out a disability who engaged in the prohibited conduct. 

In the case of an employee who is violent or who 
threatens violence in the workplace, even if the 
employee's behavior is the result of a disability, an em- 
ployer can argue that the individual is not "qualified" un- 
der the ADA, or that an employee poses a "direct threat" 
that cannot be reasonably accommodated. 

Tardiness rules are sometimes violated because of an 
individual's disability. For example, an employee who 
receives cancer treatments in the morning arrives late to 
work. The employer can presumably discipline the em- 
ployee the same way it would discipline any other em- 
ployee who is tardy. However, if the employee requests 
reasonable accommodation, the employer must consider 
whether the accommodation can be provided without 
posing an undue hardship. 

Employers commonly ask whether they must rescind 
discipline imposed for misconduct if the employee later 
requests reasonable accommodation. Probably not, be- 
cause an employer generally only has to provide reason- 
able accommodation after it is requested. If the employee 
requests reasonable accommodation after having been 
fired for tardiness, the employer does not have to rescind 
the termination. 

From BNA's ADA Manual and BNA's Employment Dis- 
crimination Report© 1995 

Must workers who threaten 
violence be accommodated? 

The legal implications of the ADA in situations involv- 
ing workplace violence were a subject of discussion at 
the 1994 meeting of the American Bar Association's Sec- 
tion of Labor and Employment Law, Committee on Em- 
ployee Rights and Responsibilities. Discussing the ADA's 
requirement of reasonable accommodation, attorney 
Craig Cornish of Colorado Springs, Colo., said that at- 
tempts must be made to find a reasonable accommoda- 
tion to an employee's mental disability, even for a person 
whom the employer believes poses a direct threat to co- 
workers or others. Under the ADA, a person who is a di- 
rect threat to the safety of someone in the workplace can 
be terminated, despite having a disability, if the threat 
cannot be eliminated by a reasonable accommodation, 
Cornish said. Employers should try to determine how an 
employee's threat to others can be eliminated short of ter- 
mination, he advised. 

Cornish acknowledged that he does not know what 
evidence is required to impose a psychological evalua- 



37 



tion on an employee. Must there be some evidence that 
the employee might pose a direct threat of violence or 
possibly injure someone, he asked, or is the standard 
"reasonable suspicion" or "probable cause?" How immi- 
nent must the danger be? The ADA does not address any 
of these questions, he pointed out. 

Various restrictions might be imposed on the em- 
ployee, such as "ordering an employee to stop drinking, 
be tested for drugs or take drugs recommended by a psy- 
chiatrist, institutionalizing an employee or requiring 
mental-health counseling, or changing the person's su- 
pervisor," he suggested. "However, what some might 
call 'benevolence' looks frightening in terms of personal 
liberty," Cornish said. 

BNA's ADA Manual © 1994 

Substance Abuse 

What you need to know about 
ADA and drug and alcohol abuse 

NOTE: The term "drug abuse" as used in the ADA in- 
cludes the abuse of legal drugs. 

The ADA seems to regard drug and alcohol abuse dif- 
ferently. Within the act itself, the term "illegal use of 
drugs" is treated extensively in three separate sections, 
whereas the term "alcohol abuse" is discussed in only 
one. In EEOC's Title I Technical Assistance Manual 
(which rightly has become the "bible" for employment is- 
sues), the eight-page chapter devoted exclusively to sub- 
stance abuse is dominated by drugs. Thus, by word count 
alone the ADA seems to be considerably more concerned 



r^^ 




Help for drug-free workplace 

The Institute for a Drug-Free Workplace in Wash- 
ington has published Drug and Alcohol Abuse Pre- 
vention and the ADA: An Employer's Guide. 
Despite some shortcomings, the book is well orga- 
nized and should be helpful. One chapter summa- 
rizes the types of inquiries an employer may and 
may not make. For example, an employer can't ask 
an applicant, "Have you ever used drugs illegally?" 
but can ask, "Do you currently use drugs illegally?" 
It includes reprinted sections of the law and a table 
of questions addressed in the book, helping readers 
to find specific answers. Single copies are $32 from 
the Institute: 1301 K St. NW, East Tower, Suite 
1010, Washington, DC 20005-3307; (202) 842- 
7400. Multiple order discounts are available. 



with the illegal use of drugs than with alcohol abuse. The 
perception is that the two are treated differently in the 
law and many people have asked why. 

The differences may be a reflection of how we as a so- 
ciety view the two problems. No one would dispute, for 
instance, that concern about drug abuse has become up- 
permost in our national consciousness. On the other 
hand, alcoholism is commonly regarded as a lifelong dis- 
ease that one can be said to be recovering from but not 
cured of. And regardless of your view of alcohol, it is le- 
gal. These are some of the ways we see drugs and alco- 
hol differently. These differences are not judgments on 
the relative severity or importance of one kind of abuse 
over the other; they simply exist. They do not explain 
point-by-point how variations in law came to be, but 
they do illustrate why there appear to be variations. But 
appearances can be deceiving. 

The difference is largely one of definitions. According 
to the ADA, a person who is currently illegally using 
drugs does not have a disability, whereas a person who is 
an alcoholic may. However, in practice neither are pro- 
tected by the law from poor performance or behavior in 
the workplace. As you examine the following summary of 
pertinent provisions, note particularly the sections about 
accommodations, workplace standards and discharge/ 
refusal to hire. 

Disability or not? 

• Alcohol 

A person who has alcoholism is a "person with a dis- 
ability" under the law. 

• Drugs 

A person with a history of drug addiction who cur- 
rently is not using drugs illegally may be a "person 
with a disability" under the law. 

• Drug addiction 

A person who is currently illegally using drugs is not 
a "person with a disability" under the law. 

• Casual drug use 

A person who casually used drugs in the past but was 
not addicted is not a "person with a disability" under 
the law. 

Accommodations 

A person who is currently using drugs illegally does not 
have a disability under the law and thus is not entitled to 
a workplace accommodation. However, a person who is 
an alcoholic or who has a history of drug abuse (but is no 
longer using drugs illegally) is entitled to the same con- 
sideration for workplace accommodations as a person 
with any other type of disability. 

An example of an appropriate accommodation would 
be permitting a long lunch period two days a week to al- 
low an employee to attend Alcoholics Anonymous meet- 
ings. The employer can require the missed time to be 
made up. In contrast, it would be inappropriate to allow 
an employee to come to work late on Monday mornings 
because of a weekend binge. 



38 



^^Wltt 



Tootsie Roll settles lawsuit 
based on Its alcohol policy 

The EEOC has entered into a consent decree with 
the maker of Tootsie Roll candies that grants back 
pay, damages and interest to a former employee 
with a disability who was fired for allegedly violat- 
ing the company's alcohol policy. The agreement 
settles a suit alleging Tootsie Roll Industries violated 
the ADA when it fired a custodian. Under the terms 
of the consent decree, the discharged man will col- 
lect $19,500. He did not request reinstatement. 

John Hendrickson, regional attorney for the EEOC 
(Chicago), said the man was fired in 1994 for alleg- 
edly violating Tootsie Roll's substance abuse policy. 
The man only appeared intoxicated due to drug 
treatment for a mental disability, Hendrickson said, 
but after being informed of the mistake, Tootsie Roll 
refused to reinstate the individual. The EEOC filed 
suit in federal court alleging Tootsie Roll's alcohol 
policy violated the ADA because it had an adverse 
impact on a person with a disability. 

"Any policy with respect to controlled substances 
which casts a wide net also tends to snare people 
with all kinds of disabilities," Hendrickson said. 

In settling the suit, the company will modify its 
substance abuse policy, and conduct ADA training 
for all managers and human resources personnel. 

From BNA's ADA Manual © 1 996 

Addiction key to disability 

An applicant for a police position in Petaluma, 
Ca., wrote on his application that he had used only 
"one-half ounce to one ounce total" of marijuana in 
his life and only a "small amount" of cocaine. Later 
he admitted that he was a "voluntary, casual" user 
and had used each drug "plus or minus 100 times." 
When the police department refused to hire him, 
the applicant filed suit under Title II of the ADA. He 
claimed that "disability" under the act includes "in- 
dividuals who are successfully rehabilitated from 
their prior use and individuals who are erroneously 
regarded as engaging in the use of illegal drugs." 

The court ruled against the applicant, citing the 
EEOC's Technical Assistance Manual, which states 
that "a person who casually used drugs illegally in 
the past, but did not become addicted" is not cov- 
ered by the ADA. In addition, the court said, even if 
the applicant could demonstrate that his level of use 
constituted a disability, his deception during the ap- 
plication process justified rejecting him. 

From BNA's ADA Manual © 1 994 



Workplace standards 

Employees who use drugs or alcohol may be held to 
the same performance and conduct standards that apply 
to other employees. 

All employees may be required to follow the Drug-Free 
Workplace Act of 1988 and rules set by federal agencies 
about drug and alcohol use in the workplace. 

Discharge/refusal to hire 

• Alcohol 

An alcoholic may be discharged or denied employ- 
ment if alcohol use diminishes job performance or 
conduct to the extent that the person is not "quali- 
fied" — in other words, unable to perform the essen- 
tial functions of the job. This is an example of 
alcoholism that is severe enough to constitute a dis- 
ability. (See "Workplace standards" above.) 

• Drugs 

A person who is currently using drugs illegally may 
be discharged or denied employment on the basis of 
such drug use. (See "Disability or not?" on previous 
page.) 

• Other disabilities 

A person with a disability, such as epilepsy, who 
also is currently illegally using drugs may be dis- 
charged or denied employment on the basis of such 
drug use. 

Drug tests 

The ADA neither authorizes nor limits the use of drug 
testing in the workplace. A drug test is not regarded as a 
medical examination and thus may be administered at 
any stage of employment, including to applicants. 

Current drug use 

When it comes to drug use, employers ask one ques- 
tion more than any: What does "current" mean? 

The law does not define "current" in weeks or months, 
or by any particular unit of time that has elapsed since a 
person last used drugs illegally. Here is what the EEOC 
has said in its Technical Assistance Manual: 

"Current drug use means that the illegal use of 
drugs occurred recently enough to justify an 
employer's reasonable belief that involvement 
with drugs is an ongoing problem. It is not lim- 
ited to the day of use, or recent weeks or days. It 
is determined on a case-by-case basis." 
For example, an applicant or employee who tests posi- 
tive for an illegal drug cannot immediately enter a drug 
rehabilitation program and seek to avoid the possibility of 
discipline or termination by claiming to be in rehabilita- 
tion and no longer using drugs illegally. It is likely that an 
employer could persuasively argue that this applicant or 
employee is a 'current' user. A person who tests positive 
for illegal use of drugs is not entitled to the protection that 
may be available to former users who have been or are in 
rehabilitation. 

Further, employers probably are well advised not to 
establish their own time frames (e.g., any illegal drug use 



39 



within 30 days of application will be considered current). 
Because the ADA is to be applied on a case-by-case ba- 
sis, such policies would likely be seen as arbitrary and 
not acceptable. 

Direct threat 

Under ADA, employers are permitted to discharge or 
not hire people whose disabilities would cause a direct 
threat to the safety of co-workers or to themselves. Other 
federal laws establish standards consistent with the ADA 
that refer to drug and alcohol use for people holding 
safety-sensitive jobs. In general, however, the ADA does 
not allow employers to treat people with past drug or al- 
cohol impairments any differently from other employees. 

The ADA reflects society's varying views of drug and 
alcohol use, and acknowledges that alcohol is legal. But 
for employers, the bottom lines are these: ADA does not 
require an employer to tolerate the use of drugs or alco- 
hol, or being under the influence of either, in the work- 
place. Neither does it protect individuals who are 
performing poorly because of either substance. An em- 
ployer might be required to provide an accommodation 
to help an employee overcome an abuse problem, but 
never to forgive it. 

- D.C. 

Mental Health 

Paranoia surrounding myths of 
mental illness unfounded 

Here's exciting news! The Equal Employment Opportu- 
nity Commission (EEOC) recently published new figures 
on the impairments most often cited by people filing 
charges of discrimination under the ADA. 

All right, maybe you have to be a serious follower of 
ADA news to find these statistics exciting. But there is a 
surprise. Emotional and psychiatric disabilities are only 
the third highest category, at 10.2 percent of all claims. 
This is unexpected because the number of inquiries I re- 
ceive (both from employers and employees) about emo- 
tional and psychiatric disabilities would have led me to 
predict that these disorders represent considerably more 
than one in 10. 

What's at work here? Perhaps nothing more mysterious 
than myth. No disability group is subject to more widely- 
held and fervently-held misconceptions. Five of the most 
common, as stated by Laura Mancuso, M.S., C.R.C., a 
nationally-recognized authority on psychiatric disability, 
follow: 

1. Mental illness is uncommon. 

2. Mental illness is the same as mental retardation. 

3. People with psychiatric disabilities are likely to be 
violent. 



4. Recovery from mental illness is not possible. 

5. People with psychiatric disabilities can't tolerate 
stress on the job. 

Let's look at what Mancuso says about two of these 
myths. 

Myth #3 - People with psychiatric disabilities are 
likely to be violent. 

Upon learning that an applicant has a history of psychi- 
atric treatment, some employers may expect that the in- 
dividual is likely to become violent. This myth is 
reinforced by portrayals of people with mental illnesses 
in movies, television and the news media as frequently 
and randomly violent. According to a recent scholarly 
review of research literature, none of the data give any 
support to this sensationalized caricature of people with 
mental disorders served up by the media. (Monahan, 
John. "Mental Disorder and Violent Behavior: Percep- 
tions and Evidence," Arverican Psychologist, April 
1992.) 



Mental illness is NOT uncommon. You may 
hove someone on your staff right now who 
has such a history but who has recovered 
or learned adequate coping strategies. 



Myth #5 - People with psychiatric disabilities can't 
tolerate stress on the job. 

This oversimplifies the rather complex human response 
to stress. People with a variety of medical conditions - 
including cardiovascular disease, multiple sclerosis, and 
psychiatric disorders - may find their symptoms exacer- 
bated by high levels of stress. But the sources of personal 
and job-related stress vary substantially from person to 
person. Some find an unstructured schedule to be very 
stressful, while others struggle with a regimented work 
flow. Some people thrive on public visibility or high lev- 
els of social contact, while others need solitude to focus 
and be productive. Workers with psychiatric disabilities 
also vary in their responses to stressors on the job. All 
jobs are stressful in some regard. Productivity is maxi- 
mized when there is a good match between the 
employee's needs and the job's working conditions - 
whether or not the individual has a psychiatric disability. 

So how do employers accommodate workers with psy- 
chiatric disabilities? Simply by providing the same high- 
quality management that all employees want and thrive 
under. Such management incorporates, among other 
things, clearly articulated performance expectations, 
timely and constructive performance evaluations (includ- 
ing positive feedback) and easy availability to consulta- 
tion during the workday. In addition, the following are 
Mancuso's examples of specific accommodations that 
might benefit a specific person in a specific situation: 
flexible work schedule; part-time work; physical arrange- 



C^ 



40 



merits such as enclosed office space to reduce noise or 
visual distractions; and time during the workday to tele- 
phone supportive friends, family members or profession- 
als. 

Now, if you're an employer, perhaps you're thinking 
this is too difficult or too confusing. You might think you 
can simply avoid these difficulties by not having any em- 
ployees with psychiatric histories. Think again. As an in- 
tentional practice, that's illegal; as a product of chance, 
it's unlikely. Mental illness is NOT uncommon (see Myth 
#1). You may have someone on your staff right now who 
has such a history but has recovered or learned adequate 
coping strategies. That person's health could worsen, or 
another employee could develop a psychiatric disability 
in the future. This subject is not one you can ignore. But 
neither is it one that should intimidate you. 

For further information, request a copy of the complete 
four-page article by Laura Mancuso referred to here, 
"Employing and Accommodating Workers with Psychiat- 
ric Disabilities." It is one of a series of pamphlets devel- 
oped by Cornell University (under a contract with the 
National Institute on Disability and Rehabilitation Re- 
search) to broaden understanding of the employment 
provisions of the ADA. (See Resource, page 25.) This 
pamphlet will by no means make you an expert on psy- 
chiatric disabilities, but it's a good start, and it includes a 
list of valuable resources you can call for further assis- 
tance. 

- D.C. 



'COWltt 



Company, not supervisors, 
may have violated Title I 

individual supervisors who are not decision-mak- 
ers for a company may not be held individually li- 
able under Title I, the U.S. District Court for the 
Northern District of Illinois has ruled. In DeLuca v. 
Winer Industries, Raymond DeLuca was dismissed 
by his supervisors at Winer Industries after he was 
hospitalized with multiple sclerosis. DeLuca sued 
under Title I, claiming that his supervisors and the 
company were liable for allegedly discriminating 
against him due to his disability. 

In a preliminary ruling, however, the court found 
that only DeLuca's claim against Winer Industries 
could stand. Relying on Wessell v. AlC and other 
civil rights cases, the court ruled that individual su- 
pervisors could be held liable only if they are also 
"the employer himself.... DeLuca does not allege 
that the individual defendants were decision-mak- 
ing employees... or that the individual defendants 
were actually the employers themselves." 



Enforcement 



EEOC investigates discrimination, 
courts wield the power 

The federal Equal Employment Opportunity Commis- 
sion (EEOC) enforces Title I, Employment, of the ADA us- 
ing the same procedures used to enforce Title VII of the 
Civil Rights Act of 1964. EEOC investigates and seeks 
through conciliation to resolve any discrimination found 
and obtain relief for the recipient of the discrimination. 

For a person who believes he or she has been discrimi- 
nated against, this is the priority order of actions to take: 

• Resolve the conflict informally. 

• If informal resolution fails, file a complaint with 
EEOC. 

• File a lawsuit within 90 days of receiving EEOC's 
right-to-sue letter. 

Informal resolution 

The importance of trying to resolve conflicts informally 
cannot be overemphasized. Aside from the intangible 
benefits of avoiding an adversarial situation, individuals 
need to understand that the formal process will take too 
long to "save" a job that is about to be terminated or re- 
gain a job that was lost last week. As of July 1995, the 
average processing time by the EEOC was 13 months. 

Informal resolution can include educating one's em- 
ployer about individual rights and employer responsibili- 
ties. (Some employers still don't know about the ADA). 
A recalcitrant employer may become more reasonable 
when it is clear that an employee is truly ready to claim 
his or her rights. 

Filing a charge of discrimination 

When informal attempts have failed, then a person may 
file a complaint with the federal EEOC. In fact, this step 
must be taken before a person can file a lawsuit. Com- 
plaints must be filed within 1 80 days of the alleged act of 
discrimination or of the date the complainant first knew 
of the discrimination. When the EEOC believes there has 
been discrimination, it will attempt to resolve the issue 
through conciliation and to obtain full relief consistent 
with the EEOC's standards for remedies. 

In mid-1995 the EEOC announced a change in its ap- 
proach to investigating charges of discrimination. 
Whereas the original intent was to investigate every com- 
plaint, now only those that appear to have merit will be 
investigated. All other charging parties will receive right- 
to-sue letters. The results of the change are uncertain be- 
cause it is not yet clear what it means to "have merit." 

People who believe they have been discriminated 
against may initiate a complaint in person, by telephone 
or by mail: EEOC Cleveland District Office, Tower City - 
Skylight Office Tower, 1660 W. Second St., Room 850, 
Cleveland, Ohio 44113-1454; (800) 669-4000. 



41 



Copies of the complaint form are also available at the 
Columbus office of David Cameron, ADA coordinator, 
Ohio Rehabilitation Services Commission. Call 1-800- 
282-4536, ext. 1232. 

Filing a lawsuit 

The EEOC's determinations that discrimination has oc- 
curred carry weight and may influence negotiations with 
employers, but these determinations do not have the au- 
thority of a court decision. Under ADA, only after the 
EEOC issues a right-to-sue letter can a person proceed to 
court. The EEOC will issue a right-to-sue letter if: 

• its investigation shows there was no discrimination; 

• its investigation shows there was discrimination, but 



conciliation efforts have failed and the EEOC has de- 
cided not to sue on the charging party's behalf; or 
• it has decided not to investigate the complaint. 
Regardless of what EEOC decides, it must issue the let- 
ter within 180 days after the original filing date. Thus, a 
letter requested after 180 days have passed will be sent 
immediately. However, a letter requested before 180 
days have passed will be sent earlier only if EEOC can 
certify that its processing will not be finished within 180 
days. A lawsuit must be filed within 90 days after receiv- 
ing the right-to-sue letter. 

Advice to Individuals on filing a charge 

The best advice about filing a complaint has always 



Mediation is cheaper, faster than meeting in court 



By Shelley Whalen, executive director, Community 
Mediation Services of Central Ohio, and president, 
Ohio Mediation Association 

Throughout the country, and especially in Ohio, a 
new awareness is emerging that the courthouse is not 
the best or only place to turn for help when disputes 
arise over issues of equitable access to goods, services 
and employment involving people with disabilities. In 
fact, the ADA recommends mediation as a more effec- 
tive alternative. 

People who opt for mediation receive the services of 
a skilled, impartial facilitator who can help them sort 
out their respective points of view and search for a 
mutually satisfying settlement that addresses the most 
critical needs of everyone involved. The process al- 
lows participants to avoid the delay, expense, public 
relations damage, and low employee morale and pro- 
ductivity that are often associated with lengthy, 
adversarial litigation. 

Mediation offers other benefits. Unlike a judge in a 
legal proceeding or arbitrator in an administrative 
hearing, a mediator does not decide who is right or 
wrong in a conflict or render a decision as to the spe- 
cific terms of a settlement between parties. Therefore, 
the process allows disputants to maintain their right to 
decide independently whether a voluntary agreement 
is possible and if so, what the specific terms of their 
settlement will be. 

When a dispute involves a person with a disability, 
mediation can be applied in many contexts. The pro- 
cess can be used to select a "reasonable accommoda- 
tion" that is both acceptable to an individual, and 
practical and cost-effective for the employer or pro- 
vider of goods or services. Mediation can also be used 
to resolve allegations of discriminatory hiring prac- 
tices or appeals stemming from the denial of disability 
benefits. Rehabilitation service providers and their cli- 
ents may even find the process useful in helping them 



reach agreement on the content of clients' individual 
written rehabilitation plans. 

It is common for a complainant to request media- 
tion before filing a formal complaint with the Civil 
Rights Commission, EEOC, or the Department of Jus- 
tice, Mediation may also be requested by either a 
complainant or a responding party in a conflict and 
undertaken at virtually any point during which a dis- 
pute remains unresolved. If, in the worst case, parties 
are unable to reach a voluntary settlement during ne- 
gotiations, they are each free to resume the pursuit of 
a legal or formal administrative ruling on their dis- 
pute. 

An increasing number of mental health profession- 
als, human resource management consultants and at- 
torneys in private practice are getting trained in both 
mediation techniques and ADA compliance, so that 
they may offer this valuable service to people with 
disabilities, businesses and divisions of government. 
In addition, many communities around the state have 
established or are in the process of establishing pub- 
licly subsidized, non-profit mediation centers in order 
to make these services available on a sliding fee scale. 

Instead of embracing the familiar "see you in court" 
mentality, you may be able to resolve issues more 
quickly and at less expense if you choose to "meet at 
the mediation table." 

Contact Shelley Whalen at (614) 228-7191 or the 
Ohio Commission on Dispute Resolution and Conflict 
Management at (614) 752-9595 for a statewide direc- 
tory of non-profit dispute resolution organizations and 
information on mediation training for professionals. 
Or contact your local bar association's Alternative 
Dispute Resolution Services representative or look for 
Mediation Services in the Yellow Pages. 




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been to be as complete as possible. That advice is more 
important now than ever. Keep every piece of paper that 
relates to the problem - notices from the employer, 
doctor's statements, even telephone message slips - any- 
thing that contains pertinent information and that helps 
establish the sequence of events. When no such docu- 
mentation exists, even your own written summary of a 
meeting or phone conversation may be helpful, espe- 
cially when it is recorded shortly after the event. 

If the EEOC decides to investigate a complaint, it will 
eventually need all that information. Starting out with a 
complete picture of all events surrounding an act of dis- 
crimination may increase the likelihood that the EEOC 
will investigate. We don't know for certain that this will 
make a difference, but a complainant needs to do what- 
ever is possible to improve his or her chances. 

The number of cases that the EEOC itself actually liti- 
gates is extremely small - less than one-tenth of a percent 



The EEOCs determinations that discrimina- 
tion has occurred carry weight and may 
influence negotiations with employers, but 
these determinations do not have the 
authority of a court decision. Only after the 
EEOC issues a right-to-sue letter can a 
person proceed to court. 



of all complaints. Because the resources for taking cases 
to court are so limited, the EEOC intends to prosecute 
only those complaints that would be precedent-setting or 
that appear to have national importance. Many people 
with disabilities will have to secure their rights not 
through the EEOC, which is slow but free, but through 
the judicial system, which is slow and expensive. 

Advice to employers on good faith effort 

The often-overlooked Section 102(a)(3) of the Civil 
Rights Act of 1991 provides the following: 

"...damages may not be awarded under this sec- 
tion where the covered entity demonstrates good 
faith efforts, in consultation with the person with 
the disability who has informed the covered en- 
tity that accommodation is needed, to identify 
and make a reasonable accommodation that 
would provide such individual with an equally 
effective opportunity and would not cause an 
undue hardship on the operation of the business." 
In other words, an employer's efforts to accommodate 
an employee may fail - for example, an effective accom- 
modation was not located or, if located, was determined 
to be an undue hardship. Still, an employee may file a 
complaint with the EEOC, who may conclude that dis- 
crimination did occur despite the employer's attempts. 
The remedy may be that the employer must provide the 



accommodation anyway, but the employer will not be li- 
able for damages as well. 

Since I am not an attorney, I avoid giving legal advice. 
However, I will pass on advice that I heard an attorney 
give in response to an employer's question about good 
faith effort. The attorney referred the questioner to the 
EEOCs suggested four-step process for determining rea- 
sonable accommodation, as presented on page 22. 

1 . Analyze the job and determine its essential func- 
tions. 

2. Determine the employee's abilities and limitations 
(in consultation with the employee). 

3. Identify potential accommodations and assess their 
effectiveness (in consultation with the employee). 

4. Choose the accommodation that serves the needs of 
both the employee and the employer (after consider- 
ing the employee's preference). 

The statute does not define good faith effort. In view of 
that, the attorney's advice was this: even though using 
this process is not required by the law, if an employer is 
going to conclude that no accommodation is possible, it 
would be wise for that employer to document and be 
able to show that the four-step process was followed, in 
case any questions should ever be asked. This would not 
be guaranteed evidence of good faith effort, but its ab- 
sence might reasonably be construed as evidence that 
there was no such effort. 

- D.C. 




Enforcement of Title I of the- ADA occurs 
through the U.S. Equal Employment Oppor- 
tunity Commission. The Ohio Rehabilitation 
Services Commission publishes this mate- 
rial for informational purposes only and 
cannot pursue claims of discrimination on 
behalf of people-with disabilities. RSC can 
assist in educating emptoyers on their 
responsibilities and employees/applicants 
on their rights. Call toll-free in Ohio at (800) 
282-4536, ext. 1232o, or at (614) 438->232. 



43 



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jCoordination 
Iwith Other Laws 





45 



Workers' Compensation 



When is a disability not a disability? 

From articles by law partners Steven V. Modica and 
Lonny H. Dolin of New York, and attorney Gary Phelan 
of Connecticut 

Many people believe that they are "protected" by the 
Americans with Disabilities Act if they are considered 
permanently or partially disabled under workers' com- 
pensation (comp) or another insurance program. This is 
untrue, and it is one of many misconceptions about the 
interplay between the ADA and workers' comp. 

"Don't return to work until you're 100 percent." 
"Come back when you don't have any medical restric- 
tions." These all-too-familiar responses have frustrated 
many injured workers caught in the workers' comp 
maze. Workers who have been injured and then denied 
accommodation for the resulting disabilities may file 
claims against employers under the ADA. 

Workers' comp laws provide wages and medical care 
for injured employees. The right to benefits depends only 
on whether the injury was work-related, regardless of 
negligence or fault. In contrast, the ADA is based on fault 
and imposes stringent penalties on employers that inten- 
tionally discriminate. Despite their differences, the ADA 
and the workers' comp system intersect at several points. 



Neither receiving workers' comp benefits 
nor being classified as permanently dis- 
abled for workers' comp purposes will auto- 
matically establish coverage under the ADA. 



The ADA prohibits employers from conducting prelimi- 
nary medical examinations of job applicants or asking 
about the existence, nature or severity of a disability. The 
Interpretive Guidance materials accompanying the Equal 
Employment Opportunity Commission's ADA regulations 
also prohibit employers from asking about an applicant's 
workers' compensation history before making a job offer. 
However, employers may ask applicants (1 ) whether they 
are able to perform a job-related function and (2) how 
they would do so, with or without a reasonable accom- 
modation. 

The post-offer stage is triggered when the employer 
makes the applicant a job offer contingent on the 
applicant's participating in a medical examination or in- 
quiry. Before employees start work, the employer may 
explore their workers' comp history through a medical 
inquiry or examination, so long as all applicants in the 
same job category face the same scrutiny. Employers 
may use this information to verify employment history. 



The ADA does not prohibit an employer 
from acquiring information about preexist- 
ing injuries. IHowever, the employer can 
seek this information only after conditionally 
offering employment and only if all appli- 
cants are subject to the same inquiry. 



identify applicants who have filed fraudulent workers' 
comp claims, and give the government information re- 
quired by state laws regulating workers' comp and "sec- 
ond injury" funds. (Second injury funds provide financial 
incentives to employers who hire people with prior work- 
related disabilities.) The information may also be used to 
identify applicants who would pose a direct threat to 
their own or others' health and safety on the job unless 
the threat could be reduced or eliminated by a reason- 
able accommodation. Employers may not reject an appli- 
cant with a disability on the basis of medical information 
just because they think that hiring the person might raise 
their workers' comp costs. 

Many states bar workers from receiving benefits if they 
intentionally gave false medical information during hiring 
interviews. The ADA preserves this ground for disqualifi- 
cation. Employers may fire or refuse to hire people who 
knowingly provide a false answer to a lawful post-offer 
medical inquiry. 

Employers may require that employees be examined to 
determine their ability to perform essential job functiof>s. 
For instance, when an injured employee wants to return 
to work, the employer may require a job-related medical 
examination, but not a full physical examination. The 
employer cannot refuse to let injured employees return to 
work unless they either could not perform the job's essen- 
tial functions even with a reasonable accommodation or 
would pose a significant risk of substantial harm that 
could not be reduced to an acceptable level through ac- 
commodation. A medical exam may be necessary to de- 
termine a suitable accommodation for the employee's old 
job or for a vacant job offered as an accommodation. 

Neither receiving workers' comp benefits nor being 
classified as permanently disabled for workers' comp pur- 
poses will automatically establish coverage under the 
ADA. A person with a disability who can perform a job's 
essential functions if accommodated will be considered a 
"qualified individual with a disability" who is entitled to 
ADA protections. Many workers will not meet the ADA's 
definition of disability because either their injuries cause 
only temporary, non-chronic impairments or their per- 
manent injuries are not severe enough to "substantially 
limit" a major life activity. 

Workers who have disabilities will be considered quali- 



46 



fied for a job if they (1) have the needed skills and experi- 
ence and meet other job requirements and (2) can per- 
form the job's essential functions with or without 
reasonable accommodation. Identifying which job func- 
tions are essential will play a vital role in workers' comp 
cases affected by the ADA. 

The heart of the ADA lies in the reasonable accommo- 
dation requirements. Refusing to accommodate a worker 
with a disability violates the ADA unless the employer 
can show that the accommodation would impose an un- 
due hardship on the business. Assignment to light-duty 
work should be considered only when it would be unrea- 
sonable or impossible to accommodate the employee in 
the position as currently described. 

If a suitable light-duty position is vacant, an employer 
might be required to assign the worker to it as a reason- 
able accommodation. If the vacant job was created as a 
temporary position, the reassignment may be temporary. 
If a new position is offered, the employee should be 
qualified for it and the job should be equivalent to the 
original job in pay, status, location and working condi- 
tions. 

Whether the worker is "otherwise qualified" for a light- 
duty position will be determined in relation to the new 
position, not the old one. The employer might be re- 
quired to provide a further accommodation to enable the 
employee to do the new job. 

The ADA was intended to supersede conflicting state 
workers' comp laws. For example, the ADA preempts 
state laws that prevent employers from letting injured 
workers return to work if they risk future injury. Workers' 
comp exclusivity provisions do not preclude ADA claims. 

As mentioned, the ADA does not prohibit an employer 
from acquiring information about preexisting injuries. 




Employers who refuse to take injured 
workers back until they are "recovered" or 
"WO percent" will probably be unable to 
take advantage of the good-faith efforts 
defense. 



However, the employer can seek this information only 
after conditionally offering employment and only if all 
applicants are subject to the same inquiry. 

Employers may defend against ADA charges by show- 
ing that the disabled workers would have posed a direct 
threat to their own or others' health or safety. Employers 
cannot reject people with disabilities merely because hir- 
ing them would slightly increase the risk of injury. The 
disability must give rise to a "significant risk" of injury or 
a "high possibility" of substantial harm. The direct threat 
defense focuses on the worker's present ability to safely 
perform a job's essential functions. Evidence of future risk 
and higher benefits costs for the employer will not suffice. 



Answers to workers^ comp, 
ADA connection published 

The ADA has introduced a whole new set of vari- 
ables into a workplace already loaded with work- 
ers' compensation complexities. "The Workers' 
Compensation— ADA Connection: Supervisory Tools 
for Workers' Compensation Cost Containment That 
Reduce ADA Liability" attempts to answer ques- 
tions of interaction between the two laws. 

Why is this relationship so important? Some of 
the reasons are legal. For instance, although both 
systems deal with disability, they do not always 
cover the same people. Other reasons, as the book 
points out, are more philosophical: "Negative atti- 
tudes toward injured workers can make them into 
individuals with disabilities, creating ADA liabili- 
ties for an employer." The two systems can even 
operate in conflict, as the authors state: 

"The ADA requires that employers consider what 
a person with a disability can do, not just what [the 
person] cannot do. The key to ADA compliance is 
to make all employment decisions based on an un- 
derstanding of the abilities of the persons with an 
impairment and not solely on an understanding of 
their limitations. 

"The workers' compensation system (appropri- 
ately) evaluates impairment and loss of functions. It 
is only by doing this that benefits can be fairly paid. 
The problem arises when employers depend totally 
on these kinds of evaluations to make return-to- 
work decisions." 

The book describes the current workers' compen- 
sation situation in straightforward language and de- 
fines relevant terms. One of the book's strengths is 
its clear delineation of ADA provisions. It's avail- 
able for $29.50 from Milt Wright & Associates, 
Inc., (800) 626-3939. - D.C. 

EEOC adds to its ADA manual 

In September 1996, the EEOC issued Enforce- 
ment Guidance: Workers' Compensation and the 
ADA to set forth the commission's position on the 
interaction between ADA Title I and state workers' 
comp laws. The 25-page document discusses direct 
threat, light duty, reasonable accommodation, re- 
assignment and many other issues in a question and 
answer format. It should be filed in your ADA Com- 
pliance Manual. 

Contact the EEOC Publications Information Cen- 
ter, RO. Box 12549, Cincinnati, OH 45212-0549; 
(800) 669-3362 voice or (800) 800-3302 TTY. 



47 



Employers may also defend against an ADA claim by 
showing that accommodating the disability would have 
caused an "undue hardship." Theey must show that the 
accommodation would have posed a "significant diffi- 
culty or expense" in light of business size, financial re- 
sources and overall impact on the facility. An employer 
that denies an employee's accommodation request must 
be able to show that the proposed accommodation was 
not reasonable. 

Employers can also avoid liability by showing that they 
made "good faith" efforts to accommodate the disability. 
They will have to prove they tried to "identify and make a 
reasonable accommodation that would provide such in- 
dividual with an equally effective opportunity and would 
not cause an undue hardship on the operation of the 
business." Employers who refuse to take injured workers 
back until they are "recovered" or "100 -percent" will 
probably be unable to take advantage of the good-faith 
efforts defense. 



No disability found to limit 
womon^s ability to work 

A former sheet metal worker with carpal tunnel 
syndrome is not disabled under the ADA, since she 
is not restricted from holding a broad range of jobs, 
a federal district court in Kansas ruled in Lamury v. 
Boeing. 

The employee was advised by a doctor not to use 
power tools, to avoid repetitive arm activity, and to 
lift no weights over 30 pounds. She worked at light- 
duty jobs for a year, until the company discontin- 
ued its light-duty policy. Eventually, the company 
laid her off, determining she could not perform the 
essential functions of her job. 

The employee sued the employer under the ADA, 
claiming her disability was based on impairment in 
the major life activity of working. The court found 
that she had no disability. She was not disqualified 
from a wide range of jobs, the court said; in fact, 
she had been employed in a variety of jobs since 
her impairment. Moreover, the court agreed with 
the employer that the employee should be barred 
from contending that she could work at other jobs 
within the company, since she received a $45,000 
workers' compensation settlement. In her compen- 
sation claim, the employee had testified that there 
was no job she could perform at the company be- 
cause of her medical restrictions. 

From BNA's ADA Manual © 1995 



Wellness Plans 



Plans tied to insurance programs 
could run afoul of the ADA 

Composed of elements such as smoking cessation 
programs, stress management classes and lunchtime 
aerobics, most wellness plans can be a boon to the over- 
all health and productivity of a company's workforce. 
They are becoming increasingly popular in businesses, 
but if improperly administered, wellness programs could 
raise red flags with the ADA. The ADA does not prohibit 
voluntary wellness programs that do not discriminate 
against anyone, disabled or not, who chooses not to par- 
ticipate. In fact, the Equal Employment Opportunity 
Commission, in its technical assistance manual, says em- 
ployers can conduct voluntary wellness and health 
screening programs, provided: 

• participation in the program is voluntary; 

• information obtained about an individual's health is 
kept confidential; and 

• the information obtained is not used to discriminate 
against an employee. 

What is voluntary? 

A voluntary wellness program is one in which an em- 
ployee can choose whether to participate with no ill con- 
sequences. This may seem obvious, but companies eager 
to implement a wellness plan should avoid offering any 
incentive that may negatively inpact workers who choose 
not to participate. For example, offering a financial in- 
centive could be risky. The higher the incentive, the 
more pressure there would be to join. Leaning on middle 
management to produce numbers in a program could 
tempt managers to coerce their staff members to partici- 
pate with threats or financial c//sincentives. 

Wellness programs and benefits packages 

Even if a wellness program is voluntary, trouble with 
ADA compliance may follow if a company constructs a 
program that can affect participants based on their health 
status. In fact, many companies have connected their 
wellness programs to their health insurance benefits 
packages. 

"Smart companies will plug their wellness programs 
into health insurance because, if you pay for the preven- 
tion up front, you save money at the other end through 
reduced claims," a spokesperson for the Wellness Coun- 
cils of America (WELCOA) said. 

By doing so, companies create a plan in which partici- 
pants must meet certain "wellness criteria," such as hav- 
ing weight, blood pressure or cholesterol levels in an 
acceptable range for their age and height, not smoking, 
not abusing alcohol or drugs, agreeing to scheduled 
medical screenings or wearing seat belts when driving. 

If they meet the criteria set out in the wellness plan. 



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participants may have their deductibles lowered or 
waived or receive extra benefits allocations, such as 
more vacation time or an upgrade of health coverage. On 
the other hand, employees who do not meet wellness cri- 
teria could end up paying more for insurance or losing 
benefits. Companies should beware. Basing benefits on 
an employee's health status can be tricky because the 
ADA requires employers to provide benefits without re- 



Baslng benefits on an employee's health 
status can be tricky because the ADA 
requires employers to provide benefits 
without regard to disability. 



gard to disability. For example, creating a wellness plan 
that requires participants to wear seat belts when driving 
to qualify for a certain bonus could discriminate against a 
blind employee. Penalizing an employee with serious 
heart disease for not meeting a cholesterol-level require- 
ment could also create problems. 

One way to work around this dilemma is to incorporate 
the ADA'S requirements to accommodate the known dis- 
abilities of otherwise qualified employees. Modifying a 
wellness plan as a reasonable accommodation could be 
one way to avoid violating the law while still offering the 
plan. "Reasonable accommodation applies to every as- 
pect of employment, including the provision of benefits, 
and that would include wellness programs," said Sibyl 
Pranschke, a St. Louis attorney who specializes in em- 
ployee benefits. "Employers just have to take a common 
sense approach in this area. Wellness programs tied into 
insurance should simply state that people with disabili- 
ties will have to request reasonable accommodation 
within [the] wellness plan." 

Indeed, the ADA doesn't require companies to do 
things that don't make sense, said Daniel R. Thomas, as- 
sociate director of insurance products at the Health Insur- 
ance Association of America (HIAA). "Employers need to 
make their wellness program flexible or be able to modify 
them to accommodate an individual," he said. 

Chrysler Corp., for example, has created a wellness 
program within its flexible benefits package that allows 
an "escape mechanism" in each wellness criteria for 
people with disabilities. "We do have an explanation sec- 
tion that says: if you have a health condition that would 
prevent you from meeting a criterion, get in touch with 
us," said Barbara Maddux, employee benefits staff spe- 
cialist at Chrysler. 

When filling out the criteria, Chrysler employees have 
the option of circling a response that says, for example, 
"My blood pressure is too high, but I am in a physician's 
care and working to meet the level acceptable for me." 
Circling such a response would not subject the employee 
to penalties in a benefits plan. 



"We firmly believe in the wellness program efforts as a 
method of improving quality of life and reducing costs. 
We have active participation within the corporation, and 
we're really driving for educational components to show 
people the correlation between wellness and reduced 
claims," Maddux said. 

After passage of the ADA, another corporation, 
Ralston-Purina, designed and implemented a wellness 
program tied to its benefits package. "We were very care- 
ful to make sure that our pricings were risk-related and in 
accordance with the standard underwriting practices re- 
quired by the ADA. We carefully considered the impact 
of the ADA as we built the program to be sure that we 
were making a good-faith effort to comply with the law 
and regulations," said Carl Londe, Ralston-Purina's man- 
ager of corporate compensation and benefit planning. 

Making programs accessible 

Another aspect of ADA compliance and wellness pro- 
grams is physical access to the programs. Title I requires 
employers to include employees with disabilities in all 
non-work activities. It would be a serious mistake for an 
employer to assume that a wheelchair user would not 
want to participate in noontime fitness activities. Instead, 
the employer could locate a gym in an accessible site. "I 
would hope that employers are conscious at least of mak- 



Title I requires employers to include employ- 
ees with disabilities in all non-work activities. 



ing facilities and programs available to people with dis- 
abilities. For example, when wellness programs cover 
nutrition, it's important for employers to consider the nu- 
tritional needs of people with disabilities and include that 
in the session. And then it's important for the employer to 
hold the program in a place that can be accessed by all 
employees," HIAA's Thomas said. 
From ADA Compliance Guide © 1 993 




49 



Family & Medical Leave Act 



FMLA and ADA address disability 
but differ in purpose, protection 

The Family and Medical Leave Act (FMLA) of 1993 has 
provided American workers with new employment rights 
that overlap and sometimes seem to conflict with the 
ADA. Although both laws address illness and disability, 
they differ in purpose and provide significantly different 
protections. 

This is an oversimplification, but it may help to think of 
the essential difference in this way: the ADA applies 
when an employee needs help to perform a job; the 
FMLA applies when an employee is not able to work. 

The purpose of this article is to lay out the basic prin- 
ciples of both laws and show where their provisions co- 
incide or conflict. To understand how these laws may 
apply to a particular situation, employers and employees 
should seek further information from their own human 
resources staff or the agencies listed in "Resources" fol- 
lowing this article. 

What are the purposes of these laws? 

ADA: to provide equal opportunity in the workplace for 
people with disabilities 

FMLA: to promote family stability and economic secu- 
rity by balancing the demands of the workplace with the 
needs of families 

Which employers are covered? 

ADA: private employers with 15 or more employees 
and all public employers regardless of size 

FMLA: private employers with 50 or more employees 
and all public employers regardless of size 

Which individuals are covered? 

ADA: an applicant or employee who 

• has a disability and 

• is qualified to perform the job 

FMLA: an employee who '- 

• has been employed for at least one year and 

• worked at least 1 ,250 hours during that year 

What is the geographic requirement? 

ADA: none 

FMLA: For an employee to be eligible for leave, the 
employer's minimum of 50 employees must be employed 
within 75 miles of the requesting employee's work site. 

When does protection apply? 

ADA: when an applicant or employee has a disability, 
defined as 

• having a physical or medical impairment that sub- 
stantially limits a major life activity 

• having a record of such an impairment or 

• being regarded as having such an impairment 



FMLA: when an employee gives birth or adopts a child 
or is unable to work because of his/her own or a family 
member's serious health condition. The term is defined 
as illness, injury, impairment, or physical or mental con- 
dition that requires 

• inpatient care in a hospital, hospice, or residential 
care facility or 

• continuing treatment by a health care provider 

A condition may constitute a disability under the ADA 
or a serious health condition under the FMLA or both. 
The circumstances must be analyzed under each statute. 

EXAMPLE: A person with a straightforward hernia may 
need surgery (and thus inpatient hospital care). He or she 
probably would be eligible for leave under the FMLA but 
would not be entitled to accommodation under the ADA 
because the condition is not substantially limiting. 

EXAMPLE: An employer learns that an employee has a 
history of mental illness. If discriminated against, this 
employee is protected by the ADA for "having a record" 
of disability, but clearly would not be entitled under the 
FMLA because there currently is no serious health condi- 
tion that makes the employee unable to work. 

EXAMPLE: An employee with cancer may receive all 
12 weeks of leave under the FMLA and still may ask for 
additional leave as an accommodation under the ADA. 
The employer would have to allow additional leave to 
the extent that it does not cause an undue hardship (see 
"What are the limits on employer obligations?"). 

What medical leave benefits are available? 

ADA: Unpaid leave that does not cause undue hard- 
ship (see "What are the limits on employer obligations?") 
may be an appropriate reasonable accommodation. A 
maximum time period is not specified in law. 

FMLA: maximum of 12 weeks leave for an employee 
with a serious health condition that makes the person 
unable to perform the job; an employee who qualifies for 
leave is entitled to it. 

What family leave benefits are available? 

ADA: none. The ADA prohibits discrimination against 
an employee who has a relationship with a person with a 
disability, but does not require an employer to provide 
accommodation (e.g., leave) for the employee simply be- 
cause of that relationship. 

FMLA: maximum of 12 weeks leave for an employee 
for the birth or adoption of a child or to care for a family 
member with a serious health condition; an employee 
who qualifies for leave is entitled to it. 

What are the limits on employer obligations? 

ADA: undue hardship, defined as a reasonable accom- 
modation that would be too expensive or too disruptive 
to the organization's operation. An employer may take 



50 



into consideration any unpaid leave already taken under 
the FMLA in determining undue hardship under the ADA. 
A maximum time period is not specified in law. 

FMLA: maximum of 12 weeks leave. There is no undue 
hardship limitation. 

What are the reinstatement requirennents? 

ADA: entitled to position held before leave (assuming 
employee is still qualified). If the job is not vacant be- 
cause holding it open would have been an undue hard- 
ship or if the person can no longer perform the job, the 
employer must consider reassignment to another posi- 
tion, including to a lower-level position. 

FMLA: entitled to position held before leave OR to an 
equivalent or comparable position with equivalent ben- 
efits and pay. An employer does not have to show undue 
hardship in order to transfer an employee to an equiva- 
lent position. 

What if the laws conflict? 

The FMLA does not modify or affect any law prohibit- 
ing discrimination on the basis of disability, including the 
ADA. Thus a qualified person with a disability under the 
ADA may also be eligible for leave under the FMLA. 
When that is the case, the employer must analyze the 
situation under both statutes and follow the one that pro- 
vides the greatest benefit to the employee. 

Who is responsible for enforcement? 

ADA: Equal Employment Opportunity Commission 
FMLA: Department of Labor 
- D.C. 




Help with ADA questions 

U.S. Equal Employment Opportunity Commis- 
sion, (800) 669-4000 voice, (800) 669-6820 TTY 

Ohio Rehabilitation Services Commission, ADA 
Coordinator, (800) 282-4536 voice/TTY 

ADA-OhllO information project, (800) ADA- 
OHIO voice, (800) ADA-ADAl TTY 

Great Lakes Disability and Business Technical In- 
formation Center, (800) 949-4ADA voice/TTY 

Help with FMLA questions 

U.S. Department of Labor's Wage and FHour Divi- 
sion offices in Ohio: 
Cincinnati - (513) 684-2908 
Cleveland - (216) 522-3892/3893 
Columbus - (614) 469-5677 



FMLA: Conflict or coordination? 

By Peter A. Susser 

Now that the Family and Medical Leave Act of 1993 
(FMLA) has become law, employers must ensure that 
they are in compliance with both the FMLA and the ADA. 
Section 401 of the FMLA provides that: "Nothing in this 
act or any amendment made by this act shall be con- 
strued to modify or affect any federal or state law prohib- 
iting discrimination on the basis of race, religion, color, 
national origin, sex, age or disability." 



Seeking more information than necessary 
may violate ttie ADA. 



Thus, employers providing federally-mandated family 
and medical leave must implement leave policies with an 
eye toward complying with the ADA. Temporary condi- 
tions, such as pregnancy, are not considered "disabili- 
ties" under the ADA. However, it is likely that a certain 
number of employees eligible for leave under the FMLA 
will qualify as disabled under the ADA. For example, em- 
ployees with heart conditions requiring ongoing treat- 
ment, infection with the HIV virus, and most cancers will 
be entitled to the protections of both laws. 

The FMLA and the ADA overlap in several circum- 
stances, two of which are highlighted below. 

Medical certification requirements 

Under the ADA, an employer is prohibited from requir- 
ing a current employee to submit to a medical examina- 
tion unless the examination is "job-related and consistent 
with business necessity." In addition, the ADA prohibits 
inquiries into whether an employee is an individual with 
a disability and the nature and severity of the disability. 

The FMLA, however, allows employers to require em- 
ployees to provide written certification from a health care 
provider to verify the need for family or medical leave. 
Under the FMLA, an employee may be required to pro- 
vide information on the existence, nature and severity of 
a disability. 

To avoid potential ADA violations, employers should 
follow certain procedures to ensure ADA compliance: 

• Written certifications required by employers under 
the FMLA should be narrowly tailored to secure only 
the information necessary to verify leave requests. 
For example, an employer may ask that the physician 
verifying an employee leave request only certify that 
leave is necessary and not disclose detailed informa- 
tion regarding the medical condition that triggers the 
need for leave, or any long-term prognosis for the 
condition. 

• If certification is required to support a request for 
family or medical leave, the information required 
should be job-related and consistent with business 



51 



necessity (e.g., need for, length of and timing of the 
leave). Seeking more information than necessary may 
violate the ADA. 

• Employers should be careful not to inquire into pos- 
sible future effects of an employee's serious health 
condition during the certification process. For ex- 
ample, if a written certification verifies that an em- 
ployee has cancer, the employer may not inquire 
into whether the illness is terminal. 

• Front-line supervisors should be instructed not to dis- 
cuss leave requests or medical conditions with em- 
ployees. Employers should designate a representative 
who is knowledgeable about leave policies and the 
ADA as the person responsible for processing leave 
requests. 

• Employers should protect the confidentiality of any 
information obtained in a leave request. For ex- 
ample, only supervisors and managers should be in- 
formed that a leave has been granted, the length of 
the leave and the arrangements for work coverage 
during the leave. 

Family leave/reasonable accommodation 

The ADA prohibits discrimination against an indi- 
vidual, whether disabled or not, based on that 
individual's relationship to a person with a disability. 
Thus, an employee with a spouse, child or parent with a 



Retirement and disability 
plans need not be equal 

Employers who offer a service retirement plan to 
their employees are not required to offer a disability 
retirement plan, too. And, even if both are offered, 
they need not offer the same benefits. That's the 
word from the EEOC, which addressed the issue in 
an addendum to its compliance manual on Title I. 

Service retirement plans typically provide an in- 
come to employees who have reached a minimum 
age as stated in the plan and/or have completed a 
specific number of years of service with the em- 
ployer. Disability retirement plans typically provide 
an income to an employee who is unable to work 
because of illness or injury, without regard to age. 

"Nothing in the ADA requires an employer to 
provide a disability retirement plan, whether or not 
the employer offers a service retirement plan," the 
agency says. "Where an employer only offers a 
service retirement plan, there is no ADA violation 
as long as the service retirement plan treats persons 
who are covered by the ADA the same as other 
employees. The employer does not violate the ADA 
simply by providing different benefits under service 
and disability retirement plans." 

From Disability Compliance Bulletin © 1 995 



disability cannot be discriminated against with regard to 
employment benefits or privileges. 

However, the EEOC's technical assistance manual 
states that an employer does not have to provide a rea- 
sonable accommodation to a non-disabled individual 
simply because he or she has a "relationship" with a dis- 
abled individual. 



An employer who has allowed an employee 
to take 12 weeks of leave under FMLA may 
be required to extend that leave, as a 
reasonable accommodation, if the em- 
ployee is considered "disabled" under ADA. 



The FMLA provides protection (albeit limited) in this 
situation by requiring an employer to give an eligible em- 
ployee up to 1 2 weeks of leave for a "serious health con- 
dition" of a child, spouse or parent. Therefore, while a 
nondisabled individual may not be able to take leave for 
a disabled family member under the ADA, that right 
would be extended under the FMLA. 

The ADA'S reasonable accommodation provisions may 
require an employer to provide extended leave for a dis- 
abling condition in certain situations. An employer who 
has allowed an employee to take 12 weeks of medical 
leave under the FMLA may be required to extend that 
leave, as a reasonable accommodation, if the employee 
is considered disabled under the ADA. The employer 
would not have to provide additional leave if it would 
impose an undue hardship on the employer's operations. 
However, an employer who already has provided a leave 
of absence to an employee may have a difficult time ar- 
guing that an extention would result in an undue hard- 
ship - particularly if the extension would be a brief one. 

From ADA Compliance Guide © 1993 




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Title . 

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TITLE II 



Who is protected? 

Any person who has an impairment that substantially limits a major Mfp aefiyit 
record of such an impairment, or is regarded as having such an impcnrm^ht)< 




has a 
dition, 



the person must meet applicable eligibility requirements that are r^ired by the s^vice or 
activity in question. 

Who must comply? 

All state and local government entities; this means any organization funded by tax monies, 
including public schools. 

What is required? 

Governments must: 

• not discriminate against a person in the participation of a service or program because 
the person has a disability. 

• provide (to the extent possible) programs and services in an integrated setting. 

• not impose eligibility requirements that deny people with disabilities an equal opportu- 
nity to participate in the program or service. 

• make reasonable modifications (whenever possible) to any policies or practices that 
deny people with disabilities on equal opportunity to participate. 

• provide auxiliary aids and services (such as a sign language interpreter) to ensure 
effective communication. 

• provide telephone emergency services (including 911) that allow direct access for 
people with communications impairments. 

• not charge an additional fee to a person with a disability to cover costs of accessibility. 

• ensure "program access" for people with disabilities. 

What is program access? 

it means that government programs - when viewed in their entirety - must be readily 
accessible to and usable by people with disabilities. In other words, all public services must 
be available in locations that are accessible even if not all public buildings are accessible. 

What is not required? 

Government is not required to: 

• remove all physical barriers in all existing buildings as long as all programs ore available 
in locations that are accessible (see "What is program access?" above). 

• take any action that would result in a fundamental alteration of a program or on undue 
burden. 

* NOTE: This publication does not include information on Title M's extensive requirements for public transpor- 
tation services operated by state and local governments. The U.S. Department of Transportation has written 
regulations covering these services. 



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54 



Title II unfunded?... not! 



Federal funds can be found 

By Ceotf Nishi, architect, MCB, Inc. Architecture and 
Engineering, Lancaster 

Good news tor all units of local government: There is 
money available to build your way into compliance with 
Title II of the Americans with Disabilities Act. 

Title II of the ADA is federal law that mandates equal 
opportunities for people with disabilities to participate in 
and benefit from the services, programs and activities of 
all units of state and local government and their depart- 
ments, agencies, special purpose districts and other in- 
strumentalities. The ADA was signed into law on July 26, 
1990, and Title II went into effect on Jan. 26, 1992. All 
public entities were required to perform a self-evaluation 
and develop a transition plan by July 22, 1992. Struc- 
tural changes in facilities identified in the transition plan 
were to have been completed by Jan. 22, 1 995. In other 
words, governments were given two-and-a-half years to 
get the job done. 

As I write this in 1 996, no one knows what the level of 
compliance was then or what it is now. Federal, regional 
and state authorities have not been 
keeping score. Furthermore, none 
are willing to venture even a 
ballpark guesstimate. If the experi- 
ence and limited data of the archi- 
tecture and engineering firm of 
which I am a part is representative 
of Ohio as a whole, the compli- 
ance level is bad - very bad. 

Of 32 county, city, village and 
township governments whose programs and facilities that 
we have surveyed, none - zero percent - had completed 
compliance or had previously developed a transition 
plan. 

Our building inspections included 90 facilities re- 
quired to be accessible under Title II. Only four percent 
were in compliance, all having been newly constructed 
according to enforced accessibility guidelines. Thirteen 
percent had undergone some modifications in an attempt 
to achieve compliance, and these efforts were inappro- 
priate more often than not. In several cases, the modifica- 
tions created extreme hazards and major legal liabilities; 
for example, the use of towel bars for grab bars. 

To date, I have queried 21 counties located in central 
and southeastern Ohio. Only two are addressing the Title 
II needs of local governments in a comprehensive and 
concerted fashion. 

Why such a low level of performance years down the 
road? The standard response offered by local officials is, 
"Unfunded mandate ... I know we are supposed to do 
something, but we don't have the money. Besides, 






nobody's telling us what to do." 

The lack of money to effect immediate change has 
caused usually responsible officials to summarily dismiss 
the issue and remain uninformed. Certainly, given the 
budgetary crises of today, it is impossible to achieve 
compliance overnight. That was never an intention of the 
mandate. No arm twisting here, there aren't even au- 
thorities to keep score. Governments were gently asked 
in a spirit of goodwill and fairness to voluntarily comply 
and make do with a small but steady stream of money. 
This flow of money seems to have been overlooked - so 
much so that nine of every 1 officials I have spoken with 
did not know of its existence. 

As for the complaint that there isn't anyone out there to 
tell you what to do, there isn't. However, there are lots of 
people who are expert and willing to assist you in han- 
dling the issue. What has been missing until now is an 
"easy if done this way" approach. 

Take heart and remember. Title II compliance is a 
funded mandate, there is a model plan and there are 
people available to help you get the job done. All it takes 
is your involvement and a little attention. 



Washington is sending tax dollars back to 
your community so that you may locally 
address specific issues of national concern. 
ADA Title II is one of those issues. 



The money to build your way into compliance comes 
from the U.S. Department of Housing and Urban Devel- 
opment in the form of Community Development Block 
Grants (CDBG). These CDBG dollars are available to ev- 
ery unit of local government within the state. Seven ur- 
ban counties and 32 cities receive their funds directly 
from HUD. The remaining 81 counties and 1 1 6 small cit- 
ies receive their funds through the Ohio Department of 
Development, Office of Housing and Community Part- 
nerships. Washington is sending tax dollars back to your 
community so that you may locally address specific issues 
of national concern. ADA Title II is one of those issues. 

As was mentioned previously, only two of 21 counties 
queried are dealing with Title II compliance issues on an 
areawide and comprehensive basis. Although they are 
only at the beginning, they are nonetheless on a sure and 
scheduled track to realizing their goal. How they are do- 
ing it is a worthy model for all to emulate. 

The Fairfield County commissioners and Priscilla Steele 
of the Fairfield County Regional Planning Office are the 
insightful pioneers who created a very real and easy-to- 



55 




execute plan that would work for all. It has four parts. 

Step One: Contact all constituent governments within 
the CDBG recipient area, inform them of the free (no cost 
to local government) compliance plan and confirm their 
desire and support. 

Step Two: Utilize CDBG funds to execute an areawide 
survey that clearly and comprehensively identifies what 
needs to be done. 

Step Three: Analyze the data and establish a step-by- 
step redemption plan that is tied to yearly CDBG funding. 
You may be as surprised as I was to discover that 90 per- 
cent of the things that need to be done can be accom- 
plished by the maintenance staffs using small amounts of 
materials. 

Step Four: Follow through year by year and be proud of 
your progress toward a certain and happy conclusion. 

The most difficult part about all of the above is just get- 
ting the message across. There is money, there is a plan 
and there are people - all at the ready to work with you. 



P' 



Block grants for governments 

Funding available through the Community Devel- 
opment Block Grant program at the U.S. Depart- 
ment of Housing and Urban Development may be 
used for accessibility purposes such as installation 
of ramps, curb cuts, wider doorways, wider parking 
spaces and elevators. 

Units of local government that have specific 
questions concerning the use of CDBG funds for the 
removal of barriers should contact their local HUD 
Office of Community Planning and Development, 
or call the Entitlement Communities Division at 
HUD, (202) 708-1577, for additional information. 

Help for towns, townships 

Small communities have the same obligations as 
large cities to make themselves and their services 
accessible to citizens with disabilities. Likewise 
they are obliged to perform a self-evaluation and 
write a transition plan, and both of these should 
have been accomplished some time ago. For those 
who still don't know how to start. The Americans 
with Disabilities Act: A Compliance Workbook for 
Small Communities is an excellent resource pub- 
lished by the National Association of Towns and 
Townships. At just under 70 pages, it is large 
enough to be complete, but small enough to be us- 
able. Copies are available for $5 from the Ohio 
Township Association at (614) 863-0045. 



Get started today by contacting ADA-OHIO, 4550 
Indianola Ave., Columbus, OH 43214-2246; (800) ADA- 
OHIO (voice), (800) ADA-ADA1 (TTY), or (614) 784- 
0029 (fax). 

Financing curb ramps 

A letter to the Department of Justice (DOJ) asked who 
was responsible for paying the installation cost for a curb 
ramp. A town had billed someone who lived in a house 
located where the curb ramp was installed. 

Title II required each public entity to provide a sched- 
ule for installing curb ramps in its transition plan, with 
priority given to sidewalks that serve entities covered by 
the ADA. 

DOJ emphasized in a policy letter that the ADA does 
not mandate any particular method of financing required 
changes. However, DOJ said, "it has generally been as- 
sumed that such changes would be financed through the 
covered entity's general revenues, not by imposing spe- 
cial costs on any individual resident of a town or city." 

Although municipalities commonly bill abutting prop- 
erty owners for the cost of sidewalk improvements, these 
charges are usually based on the theory that the abutting 
property is enhanced by the improvements. DOJ ob- 
served, "Curb ramps that are installed to meet the town's 
overall obligations under the ADA do not provide a par- 
ticular benefit to the adjacent property owner and are 
more properly paid for through general revenues or other 
funds available for street and sidewalk improvements." 

Hov/ever, because the ADA and implementing regula- 
tions did not address this issue, the final determination 
with respect to payment for improvements undertaken to 
comply with the ADA is to be made by the taxing entity, 
DOJ concluded. 

From ADA Compliance Guide © 1995 

Fire stations required to make 
programs accessible 

An inquirer wrote to the DOJ asking to what extent fire 
stations are required to be made accessible under the 
ADA. The fire station was used primarily to house 
firefighters, trucks and equipment, but did occasionally 
offer tours of the station and equipment to interested 
groups. In response, the DOJ wrote that Title II of the 
ADA does require state or local government fire stations 
to make their programs accessible. The response pointed 
out that accessibility may be achieved by making physi- 
cal changes to existing buildings, acquiring or redesign- 
ing equipment, reassigning services to accessible 
buildings and delivering services at alternate accessible 
sites. The DOJ also noted that tours may be provided of 
accessible existing facilities, and audio-visual displays 
may be provided of inaccessible areas. 

From Disability Compliance Bulletin © 1994 



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Dignity and the ADA 



The hand that opens the window 

By Jonathan C. Martinis, an attorney engaged in private 
practice 

My Uncle Robert always opens windows by himself 
because my grandfather insisted on it. 

I remember asking my grandfather why Uncle Bob, 
with his cerebral palsy, who needs assistance to get up in 
the morning and go to bed at night, who can neither feed 
nor clean himself, should have to open windows by him- 
self. He told me that if Uncle Robert didn't do it by him- 
self, no one would ever know that he could - and that 
would be undignified. All people, he said, are born with 
dignity - a power of self-determination that can only be 
taken away by another person who refuses to respect it. 

He explained that when people do for you what they 
assume you cannot do for yourself - without any actual 
concern for you but to put you and your perceived 
troubles behind them - they deny you the opportunity 
and the right to do something you are perfectly capable 
of doing. They steal away your dignity. If people deny 
your dignity, you must force them to respect it. There- 
fore, Uncle Robert must always 
open windows by himself. Other- 
wise, people would open win- 
dows for him - and never actually 
look at him. They would be able to 
avoid looking in his eyes and deny 
his dignity for another five seconds 
while they worked the crank. 

My grandfather sought for years 
to ensure that Uncle Robert, who, 

it was decided before birth, would never walk or speak, 
would be treated with dignity. He pushed and cajoled, 
called in political connections and jawboned everyone 
he knew so his son could go to school to learn to create 
and communicate and open windows. My uncle still 
goes to school. And if you refuse to recognize his dignity, 
he'll force it on you by spelling it out on the letterboard 
he wears on his lap. 

I did not actually hear the word "Paternalism" until a 
few years ago. When used in regard to people with dis- 
abilities. Paternalism is an attitude so long espoused by 
society that it has become the norm. Paternalism treats 
people with disabilities like pets. When they attempt to 
escape boundaries set for them, Paternalism scoops them 
up and puts them wherever it wants, out of its way, and 
expects them to be happy because they received its atten- 
tion. Through the ADA, victims of disability discrimina- 
tion can force Paternalism to respect their dignity - to 
open its eyes and let them open their own windows. 

The ADA has come under attack. The Wall Street jour- 
nal, in a widely cited article, inferred that the act is a kind 




of refuge for people with bad backs and workplace whin- 
ers who want jobs and benefits handed to them. I spent a 
year working in a free legal clinic for people with dis- 
abilities and came in contact with typical casualties of 
Paternalism: 

• A music teacher with severe rheumatoid arthritis 
asked her school for a key to its elevator. Until that point, 
she had been forced to carry musical instruments up 
three flights of stairs each day to reach her classroom. 
The principal derided her for wanting to be employed 
"like everyone else" but still demanding special privi- 
leges. 

• A computer programmer who contracted multiple 
sclerosis was laid off in a "reduction in work force" that 
consisted of himself and eight other workers - all of 
whom had physical disabilities. He was forced to sign a 
form waiving his right to sue the company in return for 
his severance pay "like everyone else" did. 

• A government employee with 20/200 vision who 
worked all day at a computer terminal requested five- 
minute breaks every few hours. When her request was 
denied, she lodged a complaint with her union. Several 



Paternalism is an attitude so long espoused 
by society that it has become the norm. 
Paternalism treats people with disabilities 
like pets. When they attempt to escape 
boundaries set for them. Paternalism scoops 
them up and puts them wherever it wants... 



"counseling memoranda" criticizing her work were then 
placed in her personnel file. When she complained again 
to the union, she was told she should expect to be treated 
"like everyone else." 

• A woman suffered a stroke and was left with severe 
cognitive impairments. Upon her recovery, she began to 
take courses at a community college, in her words, to get 
back into society and attempt to make something out of 
her new life. The stroke had left her with difficulty retain- 
ing information, necessitating that she tape her classes. 
When she asked a question in class, her teacher an- 
nounced to the class that this type of "stuff" was holding 
everyone back. When she approached the teacher after 
class to explain why she had the gall to ask a question, 
he said he didn't want to hear any of her "disabled crap" 
and that if she didn't like it and didn't want to be treated 
"like everyone else" she should drop the class. When she 
lodged a complaint with the school, she was told that 
maybe she should cease taking classes there. 

In all these cases, people with disabilities were told 
they were being treated "like everyone else" when, in 



57 



fact, someone was actively discriminating against them. 
This Paternalistic attitude sees that people with disabili- 
ties are "like everyone else" when they are out of the way 
- when their disability and their dignity need not be rec- 
ognized. 

The statistics regarding the underemployment of people 
with disabilities are staggering, begging the question: 
Why is it that society does not deride people with dis- 
abilities for not working the way it derides the "lazy" 
homeless or the "shiftless" underclasses whom society 
says are unemployed not for lack of training or jobs but 
for lack of the desire to work? The answer lies in Paternal- 
ism. Paternalism is only too happy to keep people with 
disabilities on welfare and out of the way ... to protect its 
sensibilities and deny people's dignity. 

A person's dignity, my grandfather said, must be pro- 
tected. If you will not respect it, be prepared to have it 
forced upon you. Unless employers take steps to recog- 
nize and respect the dignity of their employees and job 
applicants, they will face a dramatic increase in lawsuits. 
Under the ADA, before a victim of disability discrimina- 
tion may sue, that person must first file a complaint with 
the Equal Employment Opportunity Commission (EEOC). 
If the EEOC does not take action on the complainant's 
behalf before 180 days pass, the complainant may de- 
mand a "right-to-sue" letter. Upon receipt of the right-to- 
sue letter, the complainant may then launch a lawsuit 
against the employer. 

Each year, the number of complaints to the EEOC will 
grow. The EEOC will issue more right-to-sue letters and 
employers will be forced to defend an ever-increasing 
number of private lawsuits seeking millions of dollars in 
damages. The damage awards to victorious plaintiffs un- 
der the ADA are a potential nightmare for employers. A 
victorious plaintiff under the ADA is entitled to back pay 
(and, possibly, front pay) with interest accumulated from 
the date of the discrimination. The plaintiff may also re- 
cover punitive damages based on the size of the employ- 
ing company up to a maximum of $300,000. 

Most frightening for employers is the potential for tack- 
ing other private claims onto the discrimination claim to 
create a much larger award. Employees who are dis- 
criminated against because of their disabilities may also 
sue the employer for intentional infliction of emotional 
distress - a true tort cause of action that can result in mil- 
lion-dollar awards. (Case law suggests that intentional in- 
fliction of emotional distress is "outside" of workers' 
compensation and thus actionable.) 

Moreover, as any employer knows, the costs of defend- 
ing a lawsuit approach, if not exceed, the cost of losing 
one. Thus, employers can add to the "ledger" of an ADA 
or other disability discrimination suit the billable hours 
charged by their legal departments or corporate counsel. 
The implications of the ADA are clear: Respect the dig- 
nity of people with disabilities or pay the damages. 

It now remains for people with disabilities to force 
those who will not recognize and respect their dignity to 



do so. The ADA provides people with disabilities the le- 
gal tools necessary to defeat Paternalism. Employers must 
prepare themselves for a spate of lawsuits if they are un- 
willing to respect the dignity of their employees and job 
applicants. 

It may well be that employers will not "wake up" until 
the first large award. At that time the legal adage will 
prove true: People need a kick in the behind to get their 
attention, for the behind is where people keep their wal- 
lets. 

From In The Mainstream, Jan/Feb 1995 




COWitt 



City^s plan to end programs for 
citizens could violate Title II 

West Palm Beach's plan to terminate funding for 
programs catering to individuals with disabilities and 
their families may violate Title II, the U.S. District 
Court for the Southern District of Florida has ruled by 
granting a pre-liminary injunction to prevent the ter- 
mination. 

In Concerned Parents to Save Dreher Park Center v. 
City of West Palm Beach, the court ruled that Title ll's 
regulations clearly prohibit excluding qualified per- 
sons with disabilities from participating in or enjoying 
the benefit of public services, programs or activities. 
As such, the court ruled, "if the city's recreational pro- 
gram is not merely one athletic or other activity but 
rather an entire network of individual activities and 
services," cancelling the programs geared to people 
with disabilities would discriminate against them. 

The court noted that even if the discriminatory ac- 
tion is not intentional, it can still violate the ADA. 
Thus, cancelling programs for people with disabilities 
but maintaining that they are free to join other pro- 
grams in which they cannot participate due to their 
disabilities could still violate the law. "If the city 
chooses to provide leisure services to non-disabled 
persons, the ADA requires that the city provide equal 
opportunity for persons with disabilities to receive 
comparable benefits." 

From ADA Compliance Cuide © 1994 



58 



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How to get professors to provide 
academic accommodations 

Professors must be instructed about their responsibili- 
ties under the ADA and Section 504 of the Rehabilitation 
Act (prohibiting federal fund recipients from discriminat- 
ing based on disability). But tread lightly, advises Sue 
Williams, ADA/Section 504 compliance officer at Geor- 
gia Southern University in Statesboro, Ca. She empha- 
sizes the importance of respecting professors' concerns 
about maintaining their academic freedom. 

Academic accommodations worl<shops 

"Tact" is the key word when trying to convince profes- 
sors reluctant to provide accommodations requested by 
the university's office of disability services. "I learned 
real quickly - one thing you don't do is sit them down 
and tell them that's the law and they have to follow it," 
Williams said. 

Instead of dealing with professors individually, Will- 
iams has found more success in educating professors 



about their ADA/Section 504 accommodation obligations 
at a departmental level. Each year, she and the coordina- 
tor of disabled student services conduct a one-hour pre- 
sentation at the faculty meetings of each of the college's 
departments, preferably at the beginning of the academic 
year. The presentation includes showing a short video 
that describes the ADA and Section 504 and their re- 
quirements to accommodate otherwise qualified students 
with disabilities. Williams reminds the faculty that ac- 
commodations suggested by disabled student services are 
tailored for each student's individual needs. She also dis- 
tributes a 35-page guide on providing reasonable accom- 
modations. 

Students with learning disabilities 

Some professors are reluctant to accommodate students 
with such "hidden" impairments as learning disabilities. 
Concerned with maintaining their academic freedom, 
high standards and fair testing methods, these professors 
initially balk at providing such accommodations as extra 
time for tests. 



Refusal to assign roommate is 
discrimination against student 

A university's refusal to assign a dormitory housing 
roommate to a student with cerebral palsy violated the 
ADA and Section 504 of the Rehabilitation Act, a fed- 
eral district court in Nebraska decided. After a trial, 
the court decided that the student, who used a wheel- 
chair and required minimal attendant care, was quali- 
fied to participate in the roommate assignment 
program, and that the university's blanket policy of 
excluding students with disabilities who require per- 
sonal attendant care violated the ADA and Section 
504. As implemented, the policy unnecessarily sepa- 
rated students with disabilities from those without dis- 
abilities. The court awarded injunctive relief, 
compensatory damages and attorneys' fees and costs. 

From ADA Compliance Guide © 1 993 

Wrongful arrests covered 

Arrests of people with disabilities who are wrongly 
suspected of being under the influence of drugs or al- 
cohol are covered by Title II of the ADA, the U.S. Dis- 
trict Court for the District of Maine has held. In 
lackson v. Inhabitants of Sanford, the court ruled that 
a man with disabilities caused by a stroke was entitled 
to a trial on his ADA claim against the town of 
Sanford, Me., and the police officer who arrested him 
for drunk driving. 

The officer asked the driver to perform field sobriety 
tests, which he performed poorly because of his dis- 
abilities. The officer then handcuffed the driver and 



placed him in the back seat of a police cruiser, where 
he slipped face down on the seat and was unable to sit 
up while being transported to the police station. He 
was allowed to go home only after it took officers 
nearly two hours to determine he wasn't under the in- 
fluence. 

The driver sued, contending that the town failed to 
train its police officers appropriately. The court declared 
that Title II "clearly applied to acts of discrimination 
by a public entity against a disabled individual." 

From BNA's ADA Manual © 1994 

DOJ settlement reinstates 
volunteer firefighters with HIV 

The Department of Justice (DOJ) sometimes resolves 
cases without filing a lawsuit by means of formal writ- 
ten settlement agreements. 

In Marshall County, Miss., a settlement agreement 
resolved two complaints involving the discharge of 
volunteer firefighters for HIV-related reasons. The first 
complainant alleged that he had been removed from 
membership in a county-funded volunteer fire depart- 
ment after that department learned he was HIV-posi- 
tive. The second complainant alleged that he had 
been removed from membership with county-funded 
fire departments as a result of his known association 
with the first. The county agreed to reinstate both 
men, pay each $1 ,000 in damages, and conduct train- 
ing for all volunteer firefighters on universal precau- 
tions to prevent the transmission of HIV during 
firefighting activities. 

From Enforcing the ADA, Update, Jan. -Mar. 1995 



59 



"Professors who have been here 20 to 25 years don't 
believe in learning disabilities to begin with." However, 
this disbelief often diminishes once Williams informs 
them about the Georgia public university system's uni- 
form criteria for identifying students with learning dis- 
abilities. "Once they know there are criteria, that helps," 
Williams said. 

Other things that help include Williams making a pre- 
sentation to new professors during orientation and an an- 
nual disability awareness day (held in a part of the 
student union that professors frequently traverse). Stu- 
dents who have identified themselves as having a disabil- 
ity with Williams' office are given a letter outlining their 
accommodation needs, which they must give to each 
professor at the beginning of every term. 

For students who require testing accommodations, an 
exam proctoring form is attached to the letter. Professors 
twho cannot proctor a student during additional time for 
an exam, can fill out the form. Williams will set up a 
room for the student, pick up the exam, arrange for moni- 
toring while the student takes the test and have someone 
return the exam to the professor. 

But some professors still refuse to accommodate other- 
wise qualified students with disabilities. Why? 

Not asking for something extra 

"When students ask for accommodation, professors ini- 
tially respond with 'you're asking for something extra,' or 
'so, you want an easy ride.' We have to show them that's 
not the case - that we're trying to give equal opportu- 
nity," Williams says. 

If a professor has refused to provide an accommoda- 
tion, Williams and the coordinator of disabled student 
services meet with the professor and student to discuss 
the reasons for the refusal and encourage the professor to 
provide requested accommodations. 

Sometimes, Williams discovers that a student asked for 
an accommodation that was not approved by disabled 
student services. In such cases, the student needs to un- 
derstand the inappropriateness of such requests. 

Other times, professors think of accommodations that 
were not requested, which they would prefer and think 
would work better than requested accommodations. 

"It's amazing how professors sometimes come up with 
accommodations we hadn't thought of," Williams notes. 

Williams advises a little bit of role reversal to make the 
whole process work. "I put myself in the professor's place 
and think, 'How would I like to be approached?'" 

But what if a professor leaves the meeting still refusing 
to provide an accommodation Williams has requested? 
Professional behavior becomes especially important if all 
else has failed, she notes. If professors remain intransi- 
gent, Williams tells students they have the right to appeal 
noting, "I have to be frank with the professors. We're pro- 
fessionals in the field. I tell them the accommodation is 
our determination and the student now has the right to 
appeal to the vice president of academic affairs." 




Info for libraries, colleges 

"The Americans with Disabilities Act: Its Impact 
on Libraries" is a compilation of a preconference 
session held prior to the 1992 American Library As- 
sociation annual conference. It is available for $28 
by contacting the American Library Association Or- 
der Department, 50 E. Huron St., Chicago, IL 
60611; (312) 280-5108. 

Title by Title: The ADA and Its Impact on 
Postsecondary Education provides a review of dis- 
ability legislation and a practical explanation of the 
ADA as it affects postsecondary educational institu- 
tions. The monograph is available for $35. Contact: 
S. Evans, Association on Higher Education and Dis- 
ability, PO. Box 21 1 92, Columbus, OH 43221 . 



Should a professor still resist, appeals go to the univer- 
sity president and then the U.S. Department of 
Education's Office for Civil Rights. However, Williams 
noted "we haven't gotten that far." 

From ADA Compliance Guide © 1995 

NOTE: Although this article originated in Georgia, 
many Ohio colleges and universities also offer excellent 
services through offices that support students with dis- 
abilities. 

Use of fragrances not barred 

Responding to an inquiry about the duty of public enti- 
ties to make reasonable modifications for the benefit of 
individuals with multiple chemical sensitivities, the De- 
partment of Justice (DOJ) offered guidance as to how far 
that duty extends under Title II of the ADA. 

The department advised that a public entity is not re- 
quired to prohibit the use of perfume or other scented 
products by employees who come into contact with the 
public. The DOJ reasoned that such a requirement would 
not be a reasonable modification of a public entity's per- 
sonnel policies. Further, the department offered, the 
regulation implementing Title II does not require public 
entities to adopt public access policies with respect to in- 
dividuals with disabilities or any particular class of indi- 
viduals with disabilities. 

From Disability Compliance Bulletin © 1 995 



60 



Title III: 



mmodotions 




61 



HIQHUQIHITS- 




What is a public accommodation? 

It is a privately-owned business that is open to the public - restaurant^^r^il ^toti^'s, doctor 
offices, day care centers. Also included are businesses offering exam><)r courses for the 
purpose of licensing, certifications, or credentialing. ^ ^ 

What is not a public accommodation? 

The following ore not covered by this part of ADA: 

• commercial facilities (examples: office buildings, factories, warehouses) that may have 
employees but ore not generally open to the public for sales or service. 

• religious organizations and entities controlled by such organizations. 

• private clubs. 

• state and local governments (subject to Title III regulations). 

Businesses are required to: 

• provide (to the extent possible) goods and services in an integrated setting. 

• make reasonable modifications (whenever possible) to policies or practices that deny 
equal access to people with disabilities. 

• provide auxiliary aids to ensure effective communication. 

• remove barriers from existing buildings when "readily achievable." 

• provide alternative measures when barrier removal is not readily achievable. 

• alter existing facilities and build new ones in accordance with the ADA Accessibility 
Guidelines. 

• not charge an additional fee to a person with a disability to cover any costs of accessibility. 

• permit the use of guide dogs and other service animals. 

When is removal of a barrier '^readily achievable?^^ 

The term applies when removing a physical or communication barrier can be done easily 
and without much expense. 

Businesses are not required to: 

• make a modification that would fundamentally alter their operation, goods or services. 

• disregard legitimate safety requirements that apply to operating a business or to deter- 
mining what barrier removal is readily achievable. 

• provide auxiliary aids that would cause an undue burden (in other words, would be too 
expensive or would result in a fundamental alteration of the business' services). 

• provide services outside their legitimate areas of specialization (e.g., a physician can refer 
a person who is deaf to a cancer specialist because the individual needs specialist care, 
but not because the other doctor has experience communicating with people who are deaf). 



62 



Auxiliary aids and services 



Retailers must do more than 
just offer assistance 

QUESTION: I notice that many of the stores in my area 
now include decals on their entrance doors indicating 
that persons with disabilities should ask for assistance if it 
is needed. Is this all that stores need to do in order to 
comply with the ADA's accessibility requirements? 

ANSWER: No. For some individuals with disabilities, 
an offer of assistance may be enough to satisfy the act. 
However, the requirements are flexible and depend on 
the nature of the disability involved and the unique facts 
and circumstances of the retail establishment. For ex- 
ample, in a May 1993 opinion letter, the Department of 
Justice said that a retail establishment may not offer as- 
sistance in retrieving inaccessible items if an accessible 
arrangement of merchandise is readily achievable. 
Therefore, a retailer should not assume that a willingness 
to provide assistance will bring the store into compliance 
with the act. 

For people with communication difficulties, a retailer is 
obligated to provide "auxiliary aids or services" unless an 
undue burden or a fundamental alteration in the nature of 
goods and services would result. For example, a store 
clerk might provide information to an individual with a 
hearing impairment by writing on a pad or a computer. 
However, an expensive, complicated purchase - like a 
new car — might require the services of a qualified sign 
language interpreter. 

The test is whether the auxiliary aid or service would 
result in a fundamental alteration of the nature of the 
goods or services involved or an undue burden on the re- 
tail establishment. An undue burden means "significant 
difficulty or expense." A qualified interpreter is probably 
not an undue burden for a car dealership, given the 
size of such a business and the price of the goods sold 
there. This does not mean that a car dealership must 
have a qualified interpreter on staff, only that arrange- 
ments for an interpreter should probably be made when 
entering serious negotiations with a person with a hear- 
ing impairment. 

Retailers also are required to remove architectural bar- 
riers when it is readly achievable to do so. "Readily 
achievable" means easily accomplishable and able to be 
carried out without much difficulty or expense. The regu- 
lations list 21 examples of modifications that may be 
readily achievable, including ramps, curb cuts and repo- 
sitioning shelves. Thus, a retailer is required to rearrange 
the layout of merchandise to allow wheelchair access, 
unless it would result in a loss of selling or serving space. 

In removing barriers, the retailer should comply with 
the ADA Accessibility Guidelines. If compliance is not 
readily achievable, the retailer must try to remove barri- 



ers in another way. For example, if a store cannot be 
made more accessible, a retailer may offer home delivery 
as an alternative to removing barriers. 

A company cannot make a one-time determination of 
what barriers will be removed and rely on that to estab- 
lish compliance with the law, as what is readily achiev- 
able may change over time. The regulations recommend 
that companies develop a self-evaluation process and a 
long-term compliance plan, and seek advice from dis- 
ability groups. The regulations also recommend the fol- 
lowing order of priorities for barrier removal: 1 ) access to 
the facility itself; 2) access to goods and services sold 
there; and 3) access to public restrooms. 

From a response by Gary Buchanan, Esq. to a question 
submitted to Disability Compliance Bulletin © 1994. 

Health care provider obligated 
to patron with deafness 

it's fairly well understood that the ADA forbids discrimi- 
nation against people with disabilities in places of public 
accommodation. That's the easy part. The hard part is 
knowing how to apply this principle in real situations, 
and no situation has generated more questions than that 
of a person who is deaf or hard of hearing seeking the 
services of a health care provider. 

Places of public accommodation must be accessible to 
people who are deaf or hard of hearing through provision 
of auxiliary aids and services to remove barriers to com- 
munication. The federal regulations offer these examples 
of auxiliary aids and services: qualified interpreters, tran- 



People who use sign language often need 
an interpreter to receive safe and effective 
nnedical treatment. ... Doctors need to 
incorporate ttiese types of expenses into 
overhead costs such as staff, equipment, 
rent and utilities. 



scription services and written materials, as well as the 
provision of telecommunication devices for the deaf 
(known as TDDs, TTYs or text telephones), telephone 
handset amplifiers, television decoders and telephones 
compatible with hearing aids. 

People who use sign language often need an interpreter 
to receive safe and effective medical treatment. A doctor 
must be able to communicate effectively and accurately 
with a patient who uses sign language to avoid the grave 
risk of misunderstanding the symptoms, misdiagnosing 
the problem, and prescribing inadequate or even harmful 
treatment. Further, without an interpreter a patient may 



63 



not understand medical instructions and warnings or pre- 
scription guidelines. 

Who pays for this? This is one area in which the ADA 
regulations, known tor their ambiguities, are quite clear: 
A public accommodation may not impose a sur- 
charge on a particular individual with a disability 
or any group of individuals with disabilities to 
cover the costs of measures, such as the provision 
of auxiliary aids, barrier removal... and reasonable 
modifications... that are required to provide that 
individual or group with the nondiscriminatory 
treatment required by the Act. [28 C.F.R. 36.301 (c)] 

Two caveats are appropriate here. First, sign language 
is regarded as a distinct language, independent of En- 
glish, and as such requires interpretation by trained, ex- 
perienced people, just as any spoken language. 
Particularly in a medical setting, it could be dangerous to 
use someone on staff who "knows a little sign." Second, 
it may be unwise to let a patient's relative or friend inter- 
pret, even someone proficient in sign language, because 
of confidentiality concerns; in sensitive matters, a family 
member may not always be an objective interpreter. 

When the doctor and patient cannot agree on the ap- 
propriate auxiliary aid, the justice Department strongly 
urges the doctor to consult with the patient about the ef- 
fectiveness of a proposed auxiliary aid and cautions that 
interpreter service may for some people be the only satis- 
factory aid for complex or lengthy discussions. 

Health care practitioners should be aware that an inter- 
preter might need to be present in any of the following 
situations: obtaining a medical history; obtaining in- 
formed consent and permission for treatment; explaining 
diagnoses, treatment, and prognosis of an illness; con- 
ducting psychotherapy; communicating before and after 
major medical procedures; explaining medication; ex- 
plaining medical costs and insurance issues; and explain- 
ing patient care on discharge from a medical facility. 

So who pays? 

The doctor pays.* It's the law, and it's about equal ac- 
cess to services. But unlike other civil rights laws that en- 
title everyone to equal treatment, the ADA requires 
treating people with disabilities according to their needs. 
That is their guarantee of equal access. Doctors need to 
incorporate these types of expenses into overhead costs 
such as staff, equipment, rent and utilities. 

- D.C. 

Based on "Memorandum on the Obligation of Health 
Care Providers Under the Americans with Disabilities 
Act," published jointly by the National Center for Law 
and the Deaf and the American Foundation for the Blind. 

* Small businesses (earnings less than $1 million per year, 30 
or fewer full-time employees) may qualify for an annual tax 
credit equal to 50 percent of "access expenditures" incurred to 
comply with the ADA. The first $250 does not earn any tax 
credit, nor do expenses in excess of $10,250. See "Tax Incen- 
tives" on page 19. 



Who's responsible for accessibility 
- landlord or tenant? 

The ADA generally requires places of public accommo- 
dation to remove barriers to access when such removal is 
"readily achievable." More specific to the landlord/ten- 
ant relationship, ADA regulations state: 

Both the landlord who owns the building that 
houses a place of public accommodation and ten- 
ant who owns or operates the place of public ac- 
commodation are public accommodations subject 
to the requirements of this part. As between the 
parties, allocation of responsibility for complying 
with the obligations of this part may be deter- 
mined by lease or other contract." (28 C.F.R. 
36.201 (b)). 
Initial efforts at drawing up the regulations attempted to 
allocate specific responsibilities to landlords and tenants. 
After numerous commenters pointed out that the alloca- 
tions would not apply in all situations, proposed specifics 
were removed from the final regulations. Some leases 
give the tenant permission to make alterations and others 
forbid it; some permit the landlord to enter a tenant's pre- 
mises to make alterations and others don't; and some 
leases contain a "compliance clause" in which one of the 
parties accepts responsibility to comply with all federal, 
state and local laws. 

Another question arose as to whether the responsibility 
would shift to the landlord if a modification was not 
readily achievable by the tenant. Would a landlord be 
required to accept a tenant's word that the removal of a 
barrier was not readily achievable? 

More insight on the issues involving tenants and land- 
lords is provided in the appendix to the final regulations: 
The ADA was not intended to change existing 
landlord/tenant responsibilities as set forth in the 
lease. By deleting specific provisions from the 
rule, the [justice] Department gives full recogni- 
tion to this principle. The suggested allocation of 
responsibilities contained in the proposed rule 
may be used if appropriate in a particular situa- 
tion. Thus the landlord would generally be held 
responsible for making readily achievable 
changes and providing auxiliary aids and services 
in common areas and for modifying policies, prac- 
tices and procedures applicable to all tenants, and 
the tenant would generally be responsible for 
readily achievable changes, provision of auxiliary 
aids and modification of policies within its own 
place of public accommodation. 

Condos generally not covered 

The Department of justice states that Title III of the ADA 
does not cover residential areas of condominiums that 
are strictly for the use of tenants and their guests. How- 
ever, areas within condominiums that are places of pub- 
lic accommodation within the meaning of Title III must 



64 




AFB consultants focus on 
needs of visually impaired 

The American Foundation for the Blind (AFB) has 
established a consulting group to help businesses, 
government agencies and industry comply with the 
ADA. The consulting group will provide services on 
all aspects of ADA compliance, with a special em- 
phasis on the needs of individuals with visual im- 
pairments. Contact Elga Joffee, ADA Consulting 
Group, AFB, 15 W. 16th St., New York, NY 10011; 
(212) 620-2047. 

AFB also publishes two self-evaluation checklists 
- one for hotels/motels and the other for health care 
facilities — to help those entities ensure access to 
customers and patients who are blind, deaf/blind or 
visually impaired. Another publication, "Of Con- 
suming Interest: A Guide to Titles II and III of the 
ADA for People with Vision Loss," may also be ob- 
tained. For copies (including alternate formats) con- 
tact: Government Relations Department, AFB, 1615 
M St. N.W., Suite 250, Washington, DC 20036. 

Book answers 146 questions 

The ADA Answer Book is a publication of SOMA 
(Building Owners and Managers Association) Inter- 
national that addresses "the 146 most critical ques- 
tions about the Americans with Disabilities Act, 
Title III." BOMA has produced numerous ADA re- 
sources, including "The ADA Video" on public ac- 
commodations, which was done under a contract 
with the Department of Justice. BOMA members 
can purchase the book for $35 or the video for $38; 
list prices are $60 and $52, respectively. Quantity 
discounts are available. Call (800) 426-6292. 

Industry-specific guidance 

The Council of Better Business Bureaus' Founda- 
tion answers ADA questions through "Access Equals 
Opportunity" guides for nine different service indus- 
tries: retail stores, grocery stores, restaurants/bars, 
car sales/service, fun/fitness centers, medical offices, 
travel/tour agencies, small shops and services, and 
professional offices. Cost is $2.50 each or $1 2 a set. 
Bulk discounts available. Contact: CBBBF, Dept. 
024, Washington, DC 20042-0024; (703) 247-3656. 

The American Hotel & Motel Association pro- 
vides the publication Accommodating All Guests 
which discusses the ADA as it pertains to the lodg- 
ing industry. Contact the group at 1201 New York 
Ave., NW, Washington, DC 20005; (202) 289-3100. 



comply with the requirements of the title. In addition, 
parking areas, entrances, access routes and restrooms 
serving places of public accommodation must comply 
with Title Ill's requirements. 
From Disability Compliance Bulletin © 1993, 1994 

Film captioning not required 

In January 1992, the DOJ responded to a question 
about whether theaters are obligated to have some 
showings of films with captions. Here is the department's 
response: "Movie theaters are places of public accommo- 
dation and, therefore, subject to the requirements of the 
ADA. However, the act does not require movie theaters 
to offer film showings with open captioning. This issue 
was specifically addressed by Congress during the legis- 
lative process, and Congress indicated that open cap- 
tioning would not be required. Closed captioning cannot 
be used because it is not a technology that is currently 
compatible with film projection." 

Ohio requires access to church 

While churches are exempt from ADA Title III accessi- 
bility requirements, they are not exempt from other fed- 
eral or state provisions related to architectural and 
programmatic accessibility. Churches receiving federal 
financial assistance to provide nutrition sites/programs, 
Head Start programs, etc., are subject to the provisions in 
Section 504 of the Rehabilitation Act of 1 973. Also, non- 
religious entities (whether receiving federal assistance or 
not) may be subject to Title III if they conduct activities in 
church facilities. 

Churches have been considered places of public ac- 
commodation under Ohio's Civil Rights Statute since 
1 976 and are subject to the accessibility provisions in the 
Ohio Basic Building Code. In February 1993, Ohio 
adopted the ADA accessibility guidelines (ADAAG) as its 
standard for new construction and renovation. As a re- 
sult, Ohio churches are required to follow those guides. 

No need to alter inventories 

The DOJ responded to an inquiry from a Pennsylvania 
senator who wrote on behalf of a constituent with a hear- 
ing impairment. The constitutent was dismayed by his in- 
ability to locate for purchase a cellular phone that was 
compatible with hearing aids like the one that he used. In 
response, the DOJ indicated that the ADA does not re- 
quire a public accommodation to alter its inventory to 
include accessible or special goods that are designed for, 
or facilitate use by, individuals with disabilities. How- 
ever, if cellular phones that are compatible with hearing 
aids do become available, a store that sells cellular 
phones would be required to special-order such a phone 
if the store usually made special orders for un-stocked 
goods in the normal course of its operation. 

From the ADA Compliance Guide © 1 993 



65 



Weight Watchers International 
agrees to provide meeting aids 

Weight Watchers International will take additional 
steps to accommodate persons with disabilities - in- 
cluding the use of video closed captioning - as part of 
the settlement of a lawsuit. The weight loss company 
was sued last year by Bryen Yunashko, a user of Ameri- 
can Sign Language, whose request for an interpreter at 
weekly support group meetings was allegedly denied. 

In Yunashko v. Weight Watchers Southern Cahfornia, 
Inc., the plaintiff's attorney said that Weight Watchers, 
as a public accommodation, is required to provide an 
interpreter - unless it can prove that to do so would be 
an undue burden. According to the suit, Yunashko at- 
tended a Weight Watchers meeting and was given a 
copy of notes that the group leader uses to facilitate 
discussion. Yunashko, however, stated he was unable 
to understand the conversations between staff and 
other members. 

According to plaintiff's attorneys. Weight Watchers 
"already has a policy in place to ensure that individu- 
als with disabilities are fully accommodated." In re- 
sponse to the complaint, attorneys say the company 
will take additional steps, including implementing a 
TTY line, eliciting requests for auxiliary aids at registra- 
tion and ensuring that all persons who require a sign 
language interpreter will be provided one. 

From Disability Compliance Bulletin © 1 995 

Brewery must allow guide dogs 

A brewery's tour policy requiring visually impaired 
guests to use a human guide instead of a guide dog vio- 
lated the ADA, a federal district court has ruled in 
Johnson v. Gambrinus Co./Spoetzl Brewery. The Texas 
brewery offers a guided public tour of its manufactur- 
ing facilities. According to the court, Franklin Johnson, 
who is blind, appeared at the brewery to take the tour 
accompanied by his trained guide dog, Romney. 
Brewery employees told Johnson that they would pro- 
vide a human guide for him but Romney would not be 
permitted to enter. The brewery had an absolute ban 
on guide dogs because of Food and Drug Administra- 
tion regulations on food contamination, employees 
told him. Johnson elected not to take the tour and sub- 
sequently sued the brewery under the ADA. 

The court observed that the "marginal increase in 
contamination risk associated with over 5,000 annual 
human visitors" to the brewery is greater than the 
"marginal increase in contamination risk associated 
with the maximum foreseeable number of annual visits 



by guide dogs." Noting that FDA regulations state that 
"pests" may not be allowed in a food plant, the court 
explained that "pests" refers to "objectionable ani- 
mals or insects." Romney was not a "pest" since he 
was regularly bathed and groomed. The brewery does 
not screen human guests for colds or other signs of 
disease before permitting them to take the tour, the 
court added. 
From BNA's ADA Manual © 1995 

Conference attendees settle 

Five Pennsylvanians with disabilities settled a law- 
suit against the Greentree Holiday Inn in Pittsburgh 
and the sponsors of a two-day conference held there 
in 1993. The suit charged that the hotel did not have 
enough accessible guest rooms - ironically, the con- 
ference dealt with assistive technology for people 
with disabilities. The lawsuit is believed to be the first 
to attempt to hold conference organizers liable for 
violations of the ADA. However, because the suit was 
settled out of court, the issue of conference-sponsor 
liability will not be argued, said Pamela Berger, the 
attorney for the plaintiffs who sued the Holiday Inn 
and the conference's three sponsors: Harmaville Re- 
habilitation Center, the Rehabilitation Institute of 
Pittsburgh and the University of Pittsburgh. 

Berger said her clients had requested guest rooms 
with accessible bathrooms. However, they learned 
upon check-in that there was only one such guest 
room. In the settlements, Harmaville agreed to adopt 
a policy of contracting only with hotels that provide 
fully accessible facilities and to inspect conference 
venues for accessibility. The University of Pittsburgh 
agreed to require all future venues to certify in writing 
that they have accessible facilities, said Berger. 

From Meeting News, 1 994 

Burger King to accommodate 

Burger King settled a lawsuit brought against it by a 
woman who is deaf. Terrylene Sacchetti, who claimed 
the restaurant's drive-through windows were inacces- 
sible under Title III, agreed to the terms of the settle- 
ment that required Burger King to develop and install 
visual electronic ordering devices at drive-through 
windows of 10 company-owned stores for testing by 
March 1995. If the devices are successful, the com- 
pany will recommend that its franchisees and other 
fast-food companies use them. Burger King also agreed 
to provide written order forms at drive-through win- 
dows and at 100 of its restaurants, and post signs to 
indicate the availability of the forms. The company 
also must develop training materials that teach its em- 
ployees how to serve customers with disabilities. 

From ADA ConnpHance Guide © 1 994 



66 



Hospital, physician owe damages 

A doctor and a hospital will pay $512,000 in dam- 
ages for refusing to admit a man because of his HIV- 
positive status. A federal jury found that Dr. Charles 
Hull and Fremont Memorial Hospital (Ohio) were li- 
able for discrimination under the Rehabilitation Act of 
1973 and ordered them to pay $62,000 in compensa- 
tory damages for pain and suffering. The jury also im- 
posed punitive damages ($150,000 against Hull and 
$300,000 against the hospital), and U.S. District Judge 
John W. Potter found that the hospital and the physi- 
cian violated the ADA. 

Fred L. Charon sought emergency treatment at the 
hospital for a non-HIV-related allergic reaction during 
a Maine-to-Wisconsin car trip in 1992. He died of 
AIDS in March 1 993, before the case went to trial. His 
companion continued the litigation as executor of the 
estate. Hospital officials say they plan to appeal. 

From Disability Compliance Bulletin © 1 995 

NFL blackout rule stands 

A federal judge ruled that a Cleveland man who is 
hearing-impaired has no cause of action against the 
National Football League over its TV blackout policy. 
The blackout rule prohibits the live local telecast of 
home football games if all stadium seats are not sold out 
72 hours prior to the game. Thomas Stoutenborough 
claimed that he is discriminatorily prohibited from lis- 
tening to the game on the radio as other fans do when 
the game is not televised. 

ADA'S Title III states that no individual shall be dis- 
criminated against on the basis of disability in the full 
and equal enjoyment of goods, services, facilities, 
privileges, advantages or accommodations of any 
place or public accommodation by any person who 
owns, leases (or leases to) or operates a place of public 
accommodation. The suit characterized the Cleveland 
Browns football team as a public accommodation un- 
der the ADA because it owns, leases or operates Cleve- 
land Municipal Stadium, a public accommodation, 
and obtains revenue from the broadcast of games over 
public airwaves. 

U.S. District Court Judge George W. White, in a 
nine-page opinion granting defendants' motion to dis- 
miss, stated that "televised broadcast of football games 
is certainly offered through the defendants, but not as a 
service of the public accommodation. It is all of the 
services which the public accommodation offers, not 
all services which the lessor of the public accommo- 
dation offers, which fall within the scope of Title III. In 
order for the statute to apply, plaintiffs would have to 
argue that [the blackout rule] is denying them full and 
equal enjoyment of services to the stadium." 

From Disability Compliance Bulletin © 1 994 




Just who has 
the disability? 



Reprint of an editorial by Audrey S. Chapman which ap- 
peared in Small Business News, Cleveland. 

I recently saw a little boy about eight-years-old help a 
disabled woman order food from McDonald's. The 
woman used a motorized vehicle for mobility and had 
great difficulty talking and using her hands. At one point, 
she tried to pick up some money, but couldn't grasp the 
bills. She tried to talk with the counter person, but was 
misunderstood. Nobody knew what to do. 

Meanwhile, the kid took over, ordered for her, counted 
out change and separated his food from hers so they 
could sit down and have a good visit. 

Too bad kids have to grow up. Too bad adults mar their 
views. Just think, if wise, experienced, knowledgeable 
adults let kids act naturally, people would not be afraid 
of the disabled. 

So now we've got this ADA thing to deal with. Uncle 
Sam is making businesses add more parking spaces, 
build more ramps, hire more people. But gosh, all these 
changes sure are expensive. 

Eyes open wide when you experience the discrimina- 
tion firsthand. While traveling on business, I stayed with 
a disabled coworker in a popular hotel chain. Handi- 
capped rooms were available only with one bed. Cots, of 
course, weren't available. It's assumed, I imagine, that 
disabled people would have no need for an extra bed. 
Most don't travel on business or have families. Do they? 

Another hotel charged more for its handicapped- 
accessible room. This room, too, had only one bed - a 
king-sized model. Towel bars were mounted so high that 
they were impossible to reach from a wheelchair. 
Couldn't reach the toilet paper, either. A luxury-style 
bathtub in shiny colorful acrylic was built on a 2-foot- 
high platform, making it a physical challenge for even an 
able-bodied person to get in. Pathetic, isn't it? 

The fact of the matter is, enacting change through the 
ADA won't mean anything until people view the disabled 
community as people. It's amazing what a wheelchair, or 
a hearing aid, or a long white cane can do to somebody. 
Somehow, they aren't somebody anymore. People don't 
see the person. They see the disability. 

As my co-worker and I left one of the aforementioned 
hotels, a group of older ladies walked by. While they 
situated themselves in an elevator, one lady poked an- 
other, gasped and said, "That poor girl." 

I grinned at her remark, realizing they had no idea how 
successful and influential she was. I looked at them, 
smiled and said, "She's just fine." 

The ladies were shocked. They just looked at me and 
the doors closed. 



67 



Of laws & lawyers 



By Arthur Blaser, assistant dean of the School of Law at 
Chapman University in Orange, Calif 

I read a dangerous book recently, one that people with 
disabilities should read, it only to know the enemy. It's 
The Death of Common Sense: How Law is Suffocating 
America, by Philip K. Howard, published in 1994 by Ran- 
dom House. The book is dangerous because it is so much 
in tune with the country's mood of killing the patient to 
avoid the hassles of managing an unwieldy disease. In this 
case, the patient is society, and the disease is inflexible 
government regulation and excessive lawsuits. 

The book is dangerous because, like every issue of the 
National Enquirer, it contains hundreds of quotable anec- 
dotes and includes what inquiring minds want to know - 
that law and lawyers are an unmitigated burden. It's dan- 
gerous because its extreme examples could keep Rush 
Limbaugh busy for months. It's dangerous because presi- 
dential contenders could use these stories to undermine or 
repeal important legislation, including the ADA. 

One problem is Howard's selective view of history. To 
hear him tell it, civil rights acts contain good parts that pro- 
tect individuals from government and bad parts that invite 
abuse by lawyers and regulators. But the historical facts 
that Howard omits or cites incompletely could be used to 
argue that, over time, lawyers have helped make us more 
humane, and regulators have helped make us healthier. 

Howard's flawed logic includes substituting anecdote for 
argument. Several of his anecdotes deal with OSHA, the 
Occupational Safety and Health Act. The complaints are 
familiar: Small business owners are confronted with so 
many regulations that it's easier to ignore them all. But to 
see what life would be like without OSHA, a trip to 
Mexico is sufficient. There, many young females work in 
manufacturing plants because they are supposedly more 
compliant. They are subject to a high rate of industrial ac- 
cidents because the workplace is not regulated. 

Many people with disabilities are familiar with the con- 
sequences of FDA regulation. We must do without drugs 
and treatments available in other countries or, if we can 
afford it, travel to Mexico or Europe. But many others have 
been disabled by health care providers and drugs that were 
not sufficiently regulated, or saved from disability by those 
providers' fears of lawyers and regulation. There are many 
examples; one is a new generation of thalidomide babies 
in countries that don't regulate the drug. 

The ADA is among Howard's targets, and he criticizes it 
by citing absurd ADA conflicts. He describes a four-story 
building that Mother Teresa's Sisters of Charity would have 
constructed for New York's homeless, if only they did not 
have to provide an elevator. He revives the debate over 
New York City's public restrooms, which would have been 
built if only they didn't have to be made accessible by city 
ordinance. The message is clear: People with disabilities 



U 

U 



are responsible not only for governmental budget crises 
but also whenever someone in New York goes homeless or 
cannot find a restroom. 

The ADA does include some mandates, but most of 
these are designed to provide choices, not to suffocate 
them. It would not require the Sisters of Charity or anyone 
else to install an elevator, but it does require that everyone 
be given a meaningful choice. It has meant a broader 
choice for employers and for employees. In many Euro- 
pean countries, employers must not only give people with 
disabilities an equal chance, as the ADA requires, but also 
meet quotas, which the ADA doesn't require. 

Howard bemoans the modern concern with rights: 
"Rights cede control to those least likely to use them wisely, 
usually partisans like disabled activists who have devoted 
their lives to remedying their own injustices." And, we 
might add, to women, homosexuals, Jews, African-Ameri- 
cans, West Virginians or anyone perceived as different. 

No wonder that the ADA was signed into law by an en- 
thusiastic George Bush. No wonder that the U.S. Chamber 
of Commerce and the National Association of Manufactur- 
ers supported its passage. No wonder that those Chicago 
radicals. Sears Roebuck, found that it took minimal effort 
and minimal cost to comply. As intended, the ADA does 
not benefit just one narrow-interest group. It benefits ev- 
eryone who can now wheel a luggage carrier with a com- 
puter and briefcase to work, then enjoy the contributions 
of a wider range of employers and employees. 

Taken together, Howard claims laws such as the ADA 
supposedly represent the death of common sense. The 
easy answer is to get rid of burdensome laws and be 
ruled and regulated by a philosopher king. Unfortu- 
nately, no such person is yet a declared candidate for the 
presidency and until that time, powerful corporations and 
interest groups will have more influence than regulators 
and lawyers. 

According to Howard, the problem with law, regulation 
and lawyers is the desire to "conquer human nature." But 
our experience with civil rights legislation shows that na- 
ture is not fixed, that we can learn and grow to become 
more humane. The law and lawyers are at their best when 
they encourage inclusion, safety and cooperation. 

Given Howard's proclivity toward argument by anec- 
dote, perhaps the best way to respond to his book is with 
another anecdote. I am a former marathon runner who vis- 
ited a chiropractor in May 1 993 and left as a quadriplegic. 
Although I received a default judgment of nearly $7 mil- 
lion against the chiropractor, I have not seen - and do not 
expect to see - a penny from him. Another of his patients 
also suffered a brain stem stroke. Her family recovered 
nothing in their suit for her wrongful death. 

Why? There are not enough laws. No law requires chi- 
ropractors to carry insurance. As a result, many are unin- 
sured or underinsured. In their case, as in many cases in 
our society, lawyers and regulators can contribute more to 
common sense than is easily recognized. 

From New Mobility, September 1995 



68 



=^, >^:^, 




Accessibility 



69 




IBIUW H 




What is ADAAG? 

ADAAG stands for ADA Accessibility Guidelines. The guidelines are tlT^^d^si^rvre^a|re- 
ments ensuring tiiat buildings and facilities are accessible to peoplevyltfi disabititiel They 
are written by the U.S. Architectural and Transportation Barriers Compliance Board. ^ 

What do the accessibility guidelines apply to? 

All new buildings and all alterations to existing buildings. An alteration is any change that 
affects a building's usability. Example: A new front door would hove to meet accessibility 
guidelines but a new heating system wouldn't. 

Are elevators required? 

• business: yes, in buildings of three stories or more or 3,000 or more square feet per floor; 
yes, in all shopping centers/malls, health care providers offices, and public transportation 
stations regardless of size; no, in all other buildings. 

• government: yes. (See "What is program accessibility?" on page 54.) 

What is required? 

Here are some of the requirements for new construction: 

• public entrances: at least 50 percent must be accessible. 

• accessible routes: must connect accessible public transportation stops, parking, passenger 
loading zones, and public streets/sidewalks to all accessible features and spaces in a 
building. 

• bathrooms: must be accessible, with one accessible stall if there are fewer than six stalls, 
and two accessible stalls when there are six or more. 

• emergency rescue: any floor without a supervised sprinkler system must include an "area 
of rescue assistance" that has direct access to an exit stairway where people who cannot 
use stairs may wait for help in an emergency. 

• telephones: one teletypewriter inside a building with four or more pay phones. 

• assistive listening: fixed-seating meeting spaces for 50 or more people or with audio- 
amplification systems must have a permanent assistive listening system. 

• automated teller machines: where provided, at least one must be accessible. 

• fitting/dressing rooms: at least five percent (a minimum of one room) must be accessible. 

What is not required? 

• to totally retrofit every existing building. 

• elevators in buildings under three stories or with fewer than 3,000 square feet per floor 
(except shopping centers/malls, health care providers' offices and public transportation 
stations regardless of size). 






70 



Barrier removal & program access 



True access is more than just 
getting through the door 

By Ken Campbell, director of Disability Policy Studies at 
the Nisonger Center, Ohio State University 

Not so long ago accessibility was considered by many 
to mean "ramps and restrooms." Today, a relatively new 
concept in access is flourishing. People with disabilities 
are expecting not just to get into a building where an ac- 
tivity takes place, but also to be provided full participa- 
tion in that activity. 

This concept is called "program access." Any goods or 
services offered to the general public must be made avail- 
able to people with disabilities, according to Titles II and 
III of the ADA. There are many ways to accomplish this. 
The following examples illustrate that barriers can be 
overcome using common sense and program access. 

When services are offered from an inaccessible office, 
is our only alternative to remodel the office and make it 
accessible? 

No! In some instances it is much easier to relocate the 
service to another area of the building that is already ac- 
cessible. 

When a public performance, such as a play, is offered 
with multiple showings, must each performance offer in- 
terpreters for audience members who are deaf? 

No! You can achieve program access by identifying 
and advertising specific showings at which interpreters 
will be available. 

Other ways of making performances available to indi- 
viduals with sensory impairments include amplification 
devices such as FM loop systems for people who are 
hard-of-hearing and audio description of the background 
action for audience members who are blind. 

Many businesses rely on the printed word to describe 
products or services. This method is not very effective for 
consumers who are blind or visually impaired. Options 
such as large print, audiotape or Braille information 
should be considered to solve this problem. 

What about the issue of store size and product han- 
dling as barriers to those customers with limitations in 
mobility, grasping or carrying? 

Several large retail and grocery stores have discovered 
ways to address this issue. Motorized scooters for cus- 
tomer use are beginning to appear in large stores. Carts 
that attach to wheelchairs are common in grocery stores, 
and some places even make reaching devices available 
to help people in wheelchairs get products from upper 
shelves. 

Restaurants have adapted both table height and table 
location to accommodate mobility concerns. Some pro- 
vide Braille menus, while others have instructed wait 
staff to read menus to customers when necessary. 




There are many more examples of program access, but 
what it really comes down to is: How creative can you 
be in making your product or service available to all 
your potential customers? 

People with disabilities make up a substantial market 
share, which increases as our population ages. Why 
would any business want to reduce its sales potential by 
10 percent or more just to retain inaccessibility? 

The cost of program access is often incredibly small. 
For businesses that qualify, the expense is reduced by a 
federal tax credit. Providing program access is an inex- 
pensive, easy way to expand the market for any business. 



How wide should doors be? 

Doors must hove a minimum 32 inches 
clear width in the open position. A 
standard 32-inch swinging door will 
not meet the requirement unless it is 
installed with special hinges. 



Choosing a consultant? 
You^d better shop around 

By Rae Duncan Lyie, Cleveland 

It would seem that there is no end to the number of 
ADA consultants loose among us. Some claim to be certi- 
fied. Many claim that they were instrumental in getting 
the ADA passed. It is a little tike the number of people 
who were supposedly on the raft with downed World 
War I ace Eddie Rickenbacker. A small cruiser would be 
needed to hold all the people who claimed to have been 
with him. 

For 20 years, there has been legislation requiring equal 
opportunities for people with disabilities in employment, 
education, programs and activities. The catch was that 
this legislation applied only to federally-funded programs 
and activities. During Revenue Sharing Days, recipients 
of federal funding were "encouraged" to make their pro- 
grams and activities more accommodating to people with 
disabilities by a threat of withholding revenue sharing 
monies. In those days (the early '80s), an agency was 
considered well paid if it was reimbursed for mileage for 
an accessibility survey. Now, people are getting big 
bucks for this work; yet, many of these consultants do not 
have a clear understanding of the ADA or its intent, mis- 
interpret the regulations and know very little about dis- 
crimination. 

If you need an ADA consultant, choose that person as 



71 



c 



carefully as you would choose anyone who is going to 
provide a service tor you. Don't be afraid to ask questions 
and don't hesitate to demand references from these indi- 
viduals. Get estimates from several consultants. Ask spe- 
cifically what their fees include. Determine what their 
educational credentials are, how long they have been in 
the ADA business and what knowledge they have of dis- 
ability. Other questions you should ask of an ADA con- 
sultant include: 

• How many architectural barrier surveys have you 
conducted? 

• What are the most important elements that you look 
for in determining facility accessibility? 

• What is the difference between compliance and us- 
ability? 

• Have you had training in advocacy, disability rights 
and architectural accessibility? 

Some ADA regulations are a bit vague, which means 
that clarification will have to come through the courts. 
This is a slow process. To help ease the pain and frustra- 
tion of compliance, the feds have invested considerable 
time and money through grants to establish ADA resource 
centers around the country. The Disability Rights Educa- 
tion and Defense Fund, Inc. has provided ADA training to 
approximately 800 people in the disability community. 
The National Institute on Disability and Rehabilitation 
Research) has established regional and state Disability 
and Business Technical Assistance Centers to assist the 
business community. Through the Equal Employment 
Opportunity Commission and Department of Justice 
(DOJ), regional arbitration centers will soon be in opera- 
tion to work on disputes and keep litigation to a mini- 
mum. 

Independent living centers play an important role as a 
resource in this scenario, and the DOJ recognizes this by 
referring ADA inquiries to the nearest center. 

Each accessibility project has its own individual chal- 
lenges. Your best strategy will involve the same methods 
used for any project: interviewing consultants, weighing 
their responses and checking their references. 

Lyie wrote this article in 1994 while accessibility serv- 
ices coordinator, Services for Independent Living, Inc. 

Beware of inspection scams 

Federal officials have uncovered a scam in which hun- 
dreds of people spent millions of dollars buying phony 
ADA inspector licenses. But the real losers could end up 
being the businesses who were told by these faux inspec- 
tors to make modifications that weren't necessary. 

A sham company. National Consulting Institute, Inc., 
sold the fake licenses, which they said would make in- 
vestors "certified and licensed ADA inspectors," accord- 
ing to officials, who stressed that no such licenses are 
authorized under the law. 

While approximately 800 individual victims of the 
scam will be given partial restitution for their losses, busi- 




ness owners will receive no money to cover the expense 
of making unnecessary accommodations. 

If you own or operate a business or are the legal repre- 
sentative of one, be sure to check the references of any- 
one claiming to be a consultant on ADA-related issues. If 
you have received information that you would like to 
verify, or simply want to learn more about the ADA, call 
the justice Department's ADA information line at (800) 
514-0301 voice or (800) 514-0383 TTY, or one of the 
Justice Department's 10 technical assistance centers. 

From Successful lob Accommodation Strategies ©1 996 



When are automatic doors required? 

They aren't. The only requirement 
established for door-opening is that 
interior doors must be operable with 
a maximum of five pounds of force; 
no maximum has been established 
for exterior doors. This is the question 
that should be addressed: Is the door 
accessible to a person with limited 
mobility and/or strength? If not, 
alternatives must be considered, 
such as providing assistance from a 
lobby receptionist or installing electric 
or automated openers. 



Sign language interpreters can 
aid communication flow 

By Ben Hall, RSC interpreter coordinator 

Communicating with individuals who are deaf often in- 
volves working with an interpreter. This situation does 
not have to be awkward or stressful. When armed with 
the right information, the experience can be gratifying 
and successful for everyone involved. 

The term "interpreter" has different meanings to differ- 
ent people. In this article we use the term as it relates to 
the communication between people who do not share a 
common language. It is important to remember that inter- 
preters help all the participants, both deaf and hearing. 
Their basic purpose is to facilitate communication be- 
tween parties with different languages by translating the 
thoughts, emotions, nuances and cultural information in- 
herent in all languages from one speaker to another. In- 
terpreters are cross-cultural mediators. 

There are a variety of communication modes or lan- 
guage preferences among people who are deaf. This fur- 
ther complicates the process of communication with this 
cultural group. Not all people who are deaf share a com- 



72 



mon language. Just like people who can hear, they have 
different languages. These may include American Sign 
Language, signed English, cued speech, oral, SEEl, SEE2 
— and the list goes on and on and on. 

Another important fact is that interpreters are human 
beings just like the rest of us. This is often overlooked by 
consumers as well as by interpreters themselves. In their 
struggle to accommodate the needs of consumers, inter- 
preters sometimes sacrifice their own personal needs. 
Some struggle with the pain of carpal tunnel syndrome or 
otherwise risk their health by interpreting non-stop be- 
cause if they would cease interpreting, the communica- 
tion would end. Please be conscious of the fact that 
interpreters need your consideration. They may need to 
take a break or get a drink of water. 

Awareness created by the ADA has caused a shortage 
of qualified interpreters. The best way to ensure that you 
will have interpreters available is to make arrangements 
EARLY! For small meetings, two weeks in advance will be 
safe. For large conferences or meetings that require mul- 
tiple interpreters, at least a month should provide ad- 
equate time to locate qualified services. 

In general, interpreters will arrive 15 minutes early, or 
earlier if the situation involves multiple interpreters and 
consumers. The purpose for this timing is to allow the in- 
terpreters and consumers a chance to assess the situation, 
the language/terminology needs, the logistics and any 
other special issues that help facilitate the communication. 

The physical layout of the room will be assessed to de- 
termine the most appropriate seating and placement to 
maximize the lines of sight. Some factors that influence 
the communication environment are lighting, room set- 
up, number of participants who are deaf, number of par- 
ticipants who are hearing, location of windows and 
doors, color and design of the background or wallpaper, 
public address systems, assistive listening devices, audio- 
visual equipment, and location of the speaker and audi- 
ence. Necessary changes will be made such as closing 
the blinds, moving a chair or turning on a light. 

There may be times when an interpreter will ask for ad- 
ditional information in advance to prepare for an assign- 
ment. For example, if the situation involves a lecture or 
presentation, an advance copy of the speaker's remarks 
or an outline of the presentation is very helpful. If the as- 
signment involves technical information, it is helpful for 
the interpreter to have a list of technical or specialized 
terminology and any other materials that may be dis- 
cussed ahead of time. Acronyms can be somewhat 
troublesome, not only for interpreters but for others as 
well. You might consider providing a list of the most fre- 
quently used acronyms before the assignment. 

Difficulties can also result when handouts are distrib- 
uted during a meeting. Some presenters immediately be- 
gin discussing the material. An individual who is deaf is 
unable to pass the papers, read the material and look at 
the interpreter at the same time. The best way to resolve 
this situation is to simply pause briefly until the material 



is completely distributed and everyone has a chance to 
look it over. 

Another perplexing phenomenon for interpreters is the 
idiom. Idioms are words or phases that have a meaning 
different from the literal meaning. Often these words or 
phrases have double or triple meanings. Unfortunately, 
because interpreters focus on the concepts of the mes- 
sage, there are times when these multiple meanings will 
be lost in the translation. 

Finally, when talking to someone using an interpreter, 
it is best to speak directly to the person who is deaf - do 
not say, "tell him/her." Simply talk as if the interpreter 
were not there. 

These are only a few of the issues that need to be con- 
sidered for interpreters to provide you with the best serv- 
ices possible. If you work together as a team and are 
aware of the needs of others, you will have a great com- 
munication experience. For an information sheet on orga- 
nizations that provide interpreting services, call Ben Hall 
at (800) 282-4536, ext. 1288 voice/TTY 




When are visual alarms required? 

^\ They are required only where there 
'^^ are audible alarms. 



When hearing aids aren^t enough, 
people may need auxiliary aids 

The ADA states that: "Public accommodation must 
provide auxiliary aids when they are necessary to ensure 
effective communication with individuals with hearing, 
vision or speech impairments." To enhance communica- 
tion with someone who is hard of hearing, a variety of 
devices are available. Some devices work with hearing 
aids and some work independently. This article will try to 
provide an overview. 

Alerting systems 

These devices use lights or vibrations to alert someone 
of the presence of an audio alarm or signal. They may be 
wired to another device, such as a doorbell, phone, 
alarm clock or baby monitor, or activated by another 
means - for example, smoke or voice. When the alerting 
system is wired to more than one signaling device, 
simple codes (number of light flashes or vibrations, for 
example) tell which device has been activated. In some 
cases the loudness of the signal is increased or its tone is 
changed to a range that a particular person can hear. 

Telephones and hearing aids 

Telephone pick-up coils in some hearing aids will bring 
the sound directly from the electrical system within the 
telephone to the hearing aid, eliminating environmental 
sounds. Not all hearing aids are equipped with a "tele- 



73 



phone switch" to activate this device, and not all tele- 
phones are compatible with telephone pick-up coils in 
hearing aids. 

When a person's hearing aid has a telephone switch, 
but the telephone system doesn't have the sufficient link- 
age to activate it, a telephone adapter can be used. This 
is a portable device that slips over the telephone earpiece 
and generates a magnetic field to which the hearing aid 
telephone pick-up coil can respond. This portable ampli- 
fier doesn't work with all telephones. 

Some phones have amplifiers built into the handset to 
control the volume and strengthen the signal. They can 
usually be used with or without a hearing aid. Amplified 
handsets in public telephones are identified with a tele- 
phone access sign. 

Telephones with text options 

Telephones equipped with keyboards are called text 
telephones, teletypewriters or telecommunications de- 
vices for the deaf, often referred to as TTYs. To receive a 
direct call from a TTY, you must also have a TTY. A text 
telephone can be connected to a regular telephone line 
and utilize the same phone number. When someone with 
a text telephone calls, the voice phone rings normally, 
but when answered, only a series of beeps will be heard. 
When you put the receiver in a cradle on your TTY, the 
two lines will be connected. Bean then type messages on 
their respective TTY keyboards. The TTY display window 
relays what the person on the other end is typing, and 
when you respond, your message appears in the win- 
dow. A printout of the conversation is also made on a 
paper tape, which you can save and refer to or tear off 
and throw away. 

Telephone relay services 

if one person is using a text telephone and the other 
party has a regular voice phone, they can have a conver- 
sation via the Ohio Relay Service. The text telephone 
user calls the service and reaches a communication assis- 
tant, who places the call to the voice number. The assis- 
tant reads aloud exactly what the TTY caller types to the 
hearing person and then types that person's verbal re- 
sponses back to the TTY-user exactly as vocalized. The 
process works in reverse when a hearing person wants to 
call a person with a text telephone. To access the Ohio 
Relay Service, call 1-800-750-0750. A communication 
assistant can explain the process before placing your call. 

Assistive listening systenns 

People with hearing impairments need to be able to dif- 
ferentiate between background noise and the voice of the 
speaker in a meeting, auditorium or theater. A limitation 
to hearing aids is that they tend to amplify all sounds 
equally. Therefore, whenever the source of the sound is 
distant, as from a stage, podium or another room, closer 
noises may be distracting and reverberation - the echo- 
ing of sound back and forth from one surface to another - 
may interfere with the main signal. 

People who are hard of hearing can attempt to solve 



this problem by sitting close to the speaker. However, it 
may not be possible to get close enough to eliminate the 
effects of noise and reverberation. 

Alternative listening devices can amplify the main sig- 
nal and make an enourmous difference by eliminating 
background sounds that interfere. The key is locating a 
microphone closer to the sound source. From there the 
signal is transmitted by way of wire, radio waves or light 
beams to a listening device worn by the person with a 
hearing impairment. This brings the talker closer to the 
ears of the listener and provides a much clearer signal 
than a personal hearing aid alone. 

Some of these devices work only with hearing aids that 
are equipped with a "telephone switch" or telephone 
pick-up coil, as mentioned earlier in "Telephones and 
hearing aids." 

Hard-wired systems have an audio amplifier that is 
wired into headphones or to a remote loudspeaker. 
These systems are less popular because they restrict the 
person with a hearing impairment to a specific location. 

An AM or FM radio system uses low-power transmit- 
ters attached to sound amplifiers that broadcast within 
the immediate area to either personal hearing aids 
equipped with telephone pick-up coils or specially de- 
signed radio receivers. These systems are subject to strict 
power and frequency restrictions by the Federal Commu- 
nications Commission. The user can leave the immediate 
area of the signal and still receive sound clearly. 

In a typical induction loop system, a loop of wire en- 
circles the assistance area. An audio amplifier drives the 
loop, producing a magnetic field. Some hearing aids con- 
tain an induction coil that responds to the magnetic field 
- this is the telephone pick-up coil feature. 

Infrared systems use wavelengths that are just below 
the visible spectrum. Users of the system wear an infrared 
receiver, which must be in direct line with the infrared 
transmitter to receive the signal. 

Captioning 

Any video production can be captioned to include the 
people in your audience who have hearing loss. 

Decoders which are either built into or attached to 
television sets allow the viewer to read captions on the 
TV screen. Selected programs now carry this signal 
which is invisible unless you have a decoder. The invis- 
ible signal is referred to as "closed captioning." The de- 
coder is standard in televisions larger than 15 inches 
manufactured after July 1993. 

Some films and videos can be purchased with closed or 
open captioning. When a program is open captioned, the 
signal and captions are visible on the screen at all times 
and cannot be made invisible. 

Real-time captioning is live. It allows the spoken word 
to be seen on an overhead screen or video monitor as a 
presentation is made. Real-time captioning is done by 
stenocaptioners using computers to transcribe and instan- 
taneously display subtitles on a video monitor or large 



74 



projection screen. It is easily hooked into the audiovisual 
equipment that is normally used for large plenary ses- 
sions at conventions. Small workshops and concurrent 
sessions can be accommodated easily with a video cam- 
era, VCR and monitor connected to the captioner's 
equipment. 

Captioned presentations can also improve comprehen- 
sion for people with learning disabilities or those for 
whom English is a second language. Furthermore, a draft 
of the transcribed material can be printed (in regular text 
or Braille) or saved to a computer disk to provide a record 
of the proceedings. 

Other options 

Office technology is changing the way we all commu- 
nicate. Fax machines and electronic mail via computer 
are especially useful to people with hearing difficulties. 

People who are fluent in sign language often prefer 
"live" interpreters even if they have some hearing or can 
use devices that work with hearing aids. Whenever you 
plan events, productions or important discussions, ask 
your participants what they need or request technical as- 
sistance from disability organizations. Helpful organiza- 
tions include local speech and hearing centers, and 
community centers for the deaf or hard of hearing. 

-T.S. 

Portions of this article are from Hearing Aids: A User's 
Guide by Dr. Wayne J. Staab, Phoenix, AZ, and from The 
Caption Company, Marietta, GA, (770) 952-4019. 



What slope is required for ramps? 

One inch of vertical rise for every 1 2 
inches of horizontal run. This is the 
steepest slope allowed; a more 
gradual slope is desirable when 
possible. 

Is there a maximum ramp length? 

No. However, the maximum rise for 
any run is 30 inches. At that point 
there must be a level landing (at least 
as wide as the ramp and at least 60" 
long) before continuing up again. 



Where should handrails be placed? 

^\ The height of ramp and stairway 
^^ handrails must be 34 to 38 inches 
from the ground. 






Alternative formats needed to 
communicate when vision limited 

When thinking of access issues, most people begin 
with removal of architectural barriers. However, there is 
more to equality than physical access. Sometimes the 
question is not, How will an individual get through the 
door? but, How can we communicate effectively? 

Public accommodations covered under Title III of the 
Americans with Disabilities Act are required to provide 
auxiliary aids and services necessary to ensure that no 
individual with a disability is excluded, denied services 
or otherwise treated different than other individuals. This 
article will focus primarily on providing printed materials 
in alternative formats for people with visual impairments. 

Braille 

Often, people jump to the conclusion that Braille is the 
answer to accommodating someone who is totally blind. 
The fact is that less than 10 percent of people who are 
legally blind ever learn to read Braille. Also, there are dif- 
ferent grades of Braille. If you have text materials printed 
in grade 2 but the person who needs to access the text 
reads only at the grade 1 level, you will not communicate. 

Providing documents, menus, directions, account 
statements and the like in Braille is a wonderful idea and 
should not be discouraged. However, it is not always the 
answer. Furthermore, the cost and time involved in pur- 
chasing a Braille printer and training someone to use it or 
contracting the work out to a Brailling service could be 
an "undue burden" to some organizations. 

Audiotaping 

A common and relatively inexpensive alternative for 
people who cannot read print is audiocassette. Audiocas- 
sette versions of printed materials can also be useful to 
people with disabilities other than blindness. People who 
have physical disabilities that prevent them from turning 
pages can benefit from this format, as can people with a 
learning disability such as dyslexia, which makes reading 
difficult. 

For optimum quality, have master tapes of your printed 
materials created by audiotaping professionals. Long 
documents should have "tone indexing" to help the lis- 
tener skip forward or backward to certain items. Tone in- 
dexing is the placement of an electronic beep at the 
beginning of a chapter or section. This feature requires 
playback equipment that will play and fast forward at the 
same time. 

In lieu of hiring a professional to audiotape, creative 
solutions can be found. One school system in Ohio regu- 
larly receives assistance from inmates at the local peni- 
tentiary, who read textbooks onto tape. 

Computer disks 

If the person you need to communicate with owns a 
personal computer with software that reads the screen 
aloud via a voice output peripheral, you may be able to 
supply the individual with a computer disk that contains 



75 



the document file. You would need to check the compat- 
ibility of your respective systems. However, with the 
right conversion software you can even translate 
Macintosh-created documents to MS-DOS-based systems 
and vice versa. 

Large print documents 

Formatting documents in large print is another method 
of effective communication with people who have visual 
problems. These tips will help: 

• Type is measured in point increments. 
This is 1 4-point type and is considered 
large print. 

However, this paragraph is set 
in 18-point type, which is rec- 
ommended. 

Anything larger than 18 points is considered too big. 
As a guide, one page of standard 11 -point type 
equals three pages of 18-point type. 

• Off-white or yellow paper is the best for readability 
for people with or without visual difficulties. Paper 
should be no wider than the standard 8-1/2 x 11 
inches. Columns of type wider than six inches will 
not track well for people who use a magnifier. 

• Setting text with left-margin justification only, also 
called "ragged right," (as in this paragraph) is 
usually preferred because setting both right- and 
left-margin justification produces uneven spacing 
between letters and words. Also, avoid centered 
text. 

• Don't type text in all capitals. 

Mailing "free matter" 

A wide variety of material can be mailed postage-free if 
it is sent by someone who is blind or who cannot use or 
read conventionally-printed material because of a physi- 
cal disability. In most cases the person receiving the mail 
must be unable to read standard print as well. 

Individuals, libraries and other noncommercial organi- 
zations serving eligible persons may mail certain materi- 
als to eligible persons and to organizations serving 
eligible persons free of postage. To qualify, the material 
cannot contain any advertising, and it is subject to in- 
spection by the Postal Service. It must be in large print, 
Braille or audio form. Handwritten or typewritten letters 
are always subject to the applicable rate of postage. 

For complete information, contact your post office for 
Publication 347, "Mailing Free Matter For Blind and Vi- 
sually Handicapped Persons: Questions and Answers." 

Planning for alternatives 

Public accommodations covered under Title III and 
state and local governments under Title II must provide 
auxiliary aids when it is not an undue burden to do so. 
The proliferation of personal computers has made it easy 
to turn documents into large print, send them to a Braille 



printer or even supply a disk copy to someone. It is not 
necessary that all documents automatically be prepared 
in all formats, but businesses and organizations should 
have a plan for making alternative formats available. Ask 
your consumers what they need, and evaluate what you 
can reasonably supply to them in accordance with the 
law. Simply reading information over the phone may suf- 
fice. It is advised that all your printed documents carry a 
statement of what alternative formats are available. 
-T.S. 

Specs for children'is facilities 

In a joint rulemaking with the U.S. Department of Jus- 
tice, the Access Board published a notice of proposed 
rulemaking (NPRM) on July 23, 1996, to add a section to 
the Americans with Disabilities Act Accessibility Guide- 
lines (ADAAG) on access to facilities used primarily by 
children. Once final, the long-awaited Section 15 will 
specify how to provide access in those places where us- 
ability by children is of primary importance, such as in 
day care centers or elementary schools. 

Section 15 will not address play settings or fixed play 
equipment; these will be addressed in the rule on recre- 
ation facilities currently being drafted by the regulatory 
negotiation committee. 

While ADAAG is based on adult dimensions and 
anthropometrics, the ADA clearly does not intend that a 
toilet room used only by small children be equipped with 
fixtures they cannot reach. The same applies to the sinks, 
fixed tables and other features found in many classrooms, 
children's museums or other children's facilities. In the 
absence of specific guidelines, most design professionals 
have used the "equivalent facilitation" provision (Section 
2.2) and applied best practices in order to design facili- 
ties that are usable by children with and without disabili- 
ties. Others, however, have been hesitant to depart from 
the ADAAG requirements. Once final, Section 15 of 
ADAAG will alleviate this problem by providing specific 
guidelines for these facilities. 

The proposed guidelines balance usability by children 
with usability by adults. They also take into account that 
facilities designed to allow access for a two-year-old may 
not always allow equal access for a 10-year-old. In some 
cases, such as with reach ranges, requirements are spe- 
cific to the age group for which the facility is constructed. 
These requirements often overlap so that facilities may be 
designed for use by children of a broad age range. The 
board has also taken great care to balance the legitimate 
cost concerns of business with access for all children. 

A copy of the proposed rule (publication S-25: 
Children's Facilities Notice of Proposed Rulemaking) can 
be obtained by calling the Access Board's automated 
publications order line at (800) 872-2253, then by press- 
ing 1, and 1 again; or (800) 993-2822 TTY 

From Access Currents, July/August 1996 






76 




Checklist, guides can help 
determine accessible features 

Are your organization's physical facilities already 
built, full of inaccessible features; or are you still look- 
ing at paper dreams? If the latter, you are in some 
ways more fortunate; if the former, remember that you 
are a member of a very large club, and then get busy. 

The "Checklist for Existing Facilities" is not new, but 
it remains one of the best instruments for assessing 
your building. It is not comprehensive but instead 
focuses on the structural priorities given in the Depart- 
ment of Justice's regulations for public accommoda- 
tions. Thus, using it - even correctly - is no guarantee 
that your facility will be accessible. But it is readable, 
reasonably small (12 pages) and user-friendly. 

The checklist was developed by Barrier Free Envi- 
ronments, Inc., and Adaptive Environments Center, 
Inc., for entities covered by Title 11 (government services) 
and Title III (privately-owned business and services). 

Barrier Free Environments has also issued install- 
ments in the Tech Sheet Series on specific areas of 
building accessibility under a grant from the National 
Institute on Disability and Rehabilitation Research. 
The series covers: Medical Care Facilities, Areas of 
Rescue Assistance, Accessible Routes, Doors, Toilet 
Stalls, and Lavatories and Mirrors. 

All these items are available for a nominal fee from 
the Great Lakes Disability and Business Technical As- 
sistance Center; (800) 949-4ADA. 

RSC offers accessibility advice 

Marilyn Sydow, facilities planner for the Ohio Reha- 
bilitation Services Commission, wrote several columns 
for the agency's official publication, NewsNet, which 
pertain to accessibility requirements of the Americans 
with Disabilities Act Accessibility Guidelines. The ar- 
ticles and accompanying diagrams were compiled as a 
12-page booklet and cover: doorways, entrances, 
parking, toilet stalls, lavatories, urinals, drinking foun- 
tains, signage and ramps. Copies oi Accessibility Bits 
(Catalog No. B-33) are free from RSC, (800) 282-4536, 
ext. 1470 voice/TTY. 

Illustrated handbook printed 

Access for All contains dimensions and design tips 
for building or renovating facilities to be barrier-free. 
The handbook explains the law in simple language 
and offers cost-efficient suggestions for accessibility. 
Call the Governor's Council on People with Disabili- 
ties; (800) 282-4536, ext. 1393 v/TTY. 



Bulletins available on surfaces, 
parking, visual alarms, etc. 

Two ADA pamphlets. Bulletin #4: Surfaces and 
Bulletin #6: Parking are available from the U. S. Ar- 
chitectural & Transportation Barriers Compliance 
Board (Access Board). Surfaces explains what surface 
characteristics are required for accessible wheelchair 
routes and covers slip resistance, surface materials 
and surface conditions. Parking provides additional 
explanation on parking requirements contained in the 
ADA Accessibility Guidelines. 

The Access Board also has bulletins on Detectable 
Warnings, Visual Alarms, Text Telephones, and Using 
ADA Accessibility Guidelines. 

Help with signage compliance 

Do you own a commercial building? Are you a fa- 
cility manager? Do you operate a restaurant or a retail 
store? If so, you may have questions about making 
your buildings' signs comply with the ADA. 

An excellent resource called Signs and the ADA 
was written by Sharon Toji, who consults frequently 
with the Architectural and Transportation Barriers 
Compliance Board and has years of first-hand experi- 
ence in the sign business. The manual includes a 
plain-English description of the regulatory require- 
ments (carefully referenced to the Federal Register), a 
signage checklist, an ADA primer and a question- 
and-answer booklet. It is available in four versions: 
"For Sign Fabricators;" "For Architects and Design- 
ers;" "For Facilities Owners or Managers;" or "For 
Sign Users Who are Disabled." 

Although the manual is neither official guidance 
nor legal advice, it will help you make good faith 
efforts to comply with the law. A quarterly newsletter 
and a toll-free consultation service are also available. 
Contact: Access Communications, 15320 S. Broad- 
way, Gardena, CA 90248; (301) 323-5210. 

Vertical access information 

Elevator World Inc. of Mobile, AL, has published 
ADA and Vertical Transportation: A Handbook on Ac- 
cessibility Regulations for Elevators, Wheelchair Lifts 
and Escalators. The 144-page handbook provides ex- 
tensive coverage of accessibility requirements for ver- 
tical transportation and is a resource for the vertical 
transportation industry, building owners/managers, 
architects, code enforcement officials and accessibil- 
ity organizations. 

It was written by code and safety consultant Ed- 
ward A. Donoghue, CPCA, and costs $45 plus $5 
postage. Contact: Elevator World Inc., RO. Box 
6507, Mobile, AL 36660; (334) 479-4514, ext. 119. 



77 




Catalog of modification costs 

Your buildings are not in compliance with the 
ADA Accessibility Guidelines and nowhere near 
accessible. The thought of retrofitting sends a chill 
up your spine. Not knowing the actual cost of 
building modifications, you assume your business 
can't afford it. 

The ADA Cost Catalog for Access Modifications 
was written to meet your need for detailed informa- 
tion on construction and costs. This large-format, 
200-plus page book describes in detail more than 
50 common accessibility modifications, complete 
with clear drawings and even pricing information. 
It was produced by Adaptive Environments Center, 
Inc., for the National Institute on Disability Reha- 
bilitation and Research. 

If you have facilities that need to be modified, 
you will find this a valuable resource to learn how 
to: install or modify curb cuts, modify existing 
stairs, install raised and Braille characters (in an el- 
evator), create accessible toilet stalls or install 
assistive listening systems, to name just a few ex- 
amples. 

In eight pages, the section on "existing double- 
leaf doors" offers 12 different estimates that take 
into account whether the opening that must be wid- 
ened is in a masonry or a stud wall, whether the 
new door will be solid wood, hollow wood or 
metal, and whether one or both existing doors will 
be replaced. Separate estimates are given for re- 
moval of doors, installation of an automatic door 
opener and installation of magnetic hold-open de- 
vices. Not all subjects rate such a thorough treat- 
ment, but then not many concerns are more 
important than getting through the door. 

Each estimate itemizes materials and labor that, 
in the final figure, includes the general contractor's 
overhead and profit. A National Cost Index lists fig- 
ures for 30 cities including Cincinnati, Cleveland 
and Columbus. When used as multipliers, these 
give a final cost that is fine-tuned to your own re- 
gion. Any publication that gives price estimates is 
soon out of date. But even a few years from now, 
with consideration given for inflation, it will help 
you determine reasonable cost. Buy it for $35 from: 
LRP Publications, Dept. 400, 747 Dresher Rd., 
Suite 500, RO. Box 980, Horsham, PA 19044- 
0980; (215) 784-0860 voice or 784-9639 fax. 

- D.C. 



Telecommunications Reform Act 
addresses disability access 

Television broadcasters will have to make their pro- 
gramming accessible to people with vision or hearing 
impairments through the use of closed captioning or 
video description, under the Telecommunications Reform 
Act of 1996. The act, signed into law Feb. 8, also re- 
quires telecommunications equipment manufacturers 
and providers to ensure that their equipment and services 
are accessible to people with disabilities, if readily 
achievable as defined under the ADA. 

These are the two major provisions of the act that per- 
tain specifically to accessibility for people with disabili- 
ties. The new law also includes four provisions intended 
to promote broad access to telecommunications in gen- 
eral. Although separate from ADA, the two acts will be 
interdependent. 

The Telecommunications Act - the first major overhaul 
of telecommunications law in almost 62 years - will af- 
fect local and long distance telephone services, cable 
programming and other video services, broadcast serv- 
ices and services provided to schools. 

Reed Hundt, chairman of the Federal Communications 
Commission, said that with the signing of the Telecom 
Act, "the future has never looked brighter for people with 
disabilities.... It's now up to the FCC to implement the 
new telecommunications law." 

The provision on "video programming accessibility," 
Section 305, ensures that video services are accessible to 
people who have hearing disabilities or visual impair- 
ments. To implement this section of the law, the FCC will 
conduct a study to determine the availability of closed 
captioning and establish a timetable to make closed 
captioning more widespread. In addition, the FCC will 
look into the availability of video description so people 
who have visual impairments can hear a description of 
what they cannot see, FHundt said. 

"Interconnection" is required under Section 251 of the 
act, meaning that telecommunications carriers must be 
able to interconnect with other carriers and not install 
features that would impede accessibility. 

The "universal service" provision under Section 254 of 
the new law requires accessibility to basic telecommuni- 
cations service for all Americans. Under universal serv- 
ice, low-cost, urban telephone subscribers and business 
customers subsidize high-cost, often rural, subscribers. 
This provision previously was meant to address needs of 
people living in rural areas, but it is interpreted to include 
people with disabilities, schools and health care institu- 
tions, according to an FCC spokeswoman. That includes 
providing affordable rates and discounts. Moreover, the 
law provides recommendations on what constitutes uni- 
versal service and what should be covered. 

From BNA's ADA Manual © 1996 



78 



1^ 



Resouic 




79 



Disability & Business Technical Assistance Center (DBTAC) ^ 

Approximately 100 publications related to the Americans with Disabilities Act are available (^ 

through the Great Lakes DBTAC located at the University of Illinois in Chicago. At least 1 5 of those ^ 

items are available in Spanish-language translation. A nominal fee is charged for orders. Call (800) ^ 

949-4ADA voice/TTY and ask for an order form. -^ 

The ADA-OHIO information project is a branch of DBTAC located in Columbus. For resource ma- ^ 

terials, telephone technical assistance or educational workshops, call (800) ADA-OHIO voice, ^ 

(800) ADA-ADAl TTY, or e-mail to ADA-OHIO@ix.netcom.com. — 

Below is a list of the materials available through DBTAC which were featured in this Sourcebook: ^ 

Definition of disability issued by EEOC, p. 1 7 ^ 

ADA Enforcement Guidance: Pre-Employment Disahility-Related Questions and Medical <- 

Exams, p. 1 7 ^ 

"A Guide for Approaching Job Descriptions and Determining Qualifications," p. 1 7 ^ 

"A Guide for Interviewing," p. 1 7 "^ 

"A Guide to Selected Forms of Accommodations: Rescheduling Work Hours, Restructuring a >^ 

Job or Reassigning Employees," p. 1 7 ^ 

"A Guide to Selected Forms of Accommodation: Modified and Specialized Equipment," p. 1 7 '^ 

"Implementing the ADA" series, p. 25 ^ 

Emergency Procedures tor Employees with Disabilities in Office Occupancies, p. 27 ^ 

"Work-site Accommodations for People with HIV," p. 30 "^ 

"Reasonable Accommodations for Persons with HIV Illness," p. 30 ^^ 

ADA Accessibility Guidelines, p. 70 ^ 

"Checklist for Readily Achievable Barrier Removal - Existing Facilities," p. 77 ^ 

Tech Sheet Series on specific areas of building accessibility, p. 77 ^ 

Ohio Rehabilitation Services Commission (RSC) r 

RSC maintains a catalog of publications and videos available from its Office of Public Informa- '- 

tion. All publications are free and many are available on audiocassette. Videos may be borrowed r— 

at no charge, but must be returned by insured first class mail or UPS. For a catalog or to reserve a ^ 

video, call (800) 282-4536, ext. 1470 voice/TTY, or (614) 438-1470 voice/TTY The following vid- ^ 

eos are recommended for people interested in learning more about the ADA. <— • 

Reasonable Accommodations of the Enabling Kind ^ 

The Americans with Disabilities Act: New Access to the Workplace "* 

Work in Progress >— • 

Beyond Compliance: Serving Customers with Disabilities ^ 

Open for Business ^ 

A Warm Welcome (recommended for restaurants) -— 

Now Serving... Every Customer ^ 

Accessible Design: Americans with Disabilities Act Accessibility Guidelines ^ 

A Challenge to America (basic overview of the ADA) — 

The Ten Commandments of Communicating with People with Disabilities ^ 

Nine articles by ADA Coordinator David Cameron which are included in this Sourcebook are ""* 

available as reprinted flyers. For copies, call (800) 282-4536, ext. 1 232 voice, ext. 1 470 TTY. >— 

Direct Threat, p. 34 Reasonable Accommodation: A Sample Policy, p. 21 ^ 

Defining Essential Functions, p. 18 Substance Abuse, p. 38 "^ 

Enforcement, p. 41 Tax Incentives, p. 13 >— 

Family and Medical Leave Act, p. 50 Who is Covered?, p. 5 ^ 

Medical Exams and Inquiries, p. 15 ^ 

In 1996, RSC established an Employer Services section to serve the business community in Ohio. >— 

For information and assistance in hiring qualified people with disabilities, contact Manager Ben ^ 

Green at (800) 282-4536, ext. 1216 voice. Assistant Manager Cathy Cain at (937) 372-441 6 voice/ — 

TTY, or Placement Supervisor David Leedy at (614) 438-1287 voice. • ^- 



80 



Resources featured in the Sourcebook 

Access Communications, 15320 S. Broadway, Gardena, CA 90248; (310) 323-5210 
Signs and the ADA (signage compliance), p. 77 

ADA-OHIO information project; (800) ADA-OHIO voice, (800) ADA-ADA1 TTY 
e-mail address; ada-ohio@ix.netcom.com 

American Foundation for the Blind, ADA Consulting Group, 1 5 W. 1 6th St. New York, NY 1 001 1 ; 
(212) 620-2047; 1-800-545-2433 

consulting groups, p. 65 
AFB Government Relations Department, 1615 M St. N.W., Suite 250, Washington, DC 20036 

self evaluation checklists, p. 65 

Of Consuming Interest: A Guide to Titles II and III of the ADA for People with Vision Loss, p. 

65 

Memorandum on the Obligation of Health Care Providers Under the Americans with 

Disabilities Act, p. 64 

American Hotel and Motel Association, 1201 New York Ave. N.W., Suite 600, Washington, DC 
20005-3931; (202) 289-3100 

Accommodating All Guests, p. 65 

American Library Association 

Order Department, 50 E. Huron St., Chicago, IL 60611; (312) 280-5108 or (800) 545-2433. 
The Americans with Disabilities Act: Its Impact on Libraries, p. 60 

Annenberg Washington Program in Communications Policy Studies 

Internet address: http://www.annenberg.nwu.edu 

The Americans with Disabilities Act: Putting the Employment Provisions to Work, p. 14 
Communicating the Americans with Disabilities Act, Transcending Compliance: A Case 
Report on Sears, Roebuck and Co., p. 31 

Arc National Headquarters; (800) 433-5255 

Call Wanda Trigg for information on the National Employment and Training Program, p. 14 

Architectural and Transportation Barriers Compliance Board (Access Board), 1331 F St. NW, 

Suite 1000, Washington, DC 20004 

Publications order line: (800) USA-ABLE (872-2253) voice, (800) 993-2822 TTY 

Bulletins on Surfaces, Parking, Detectable Warnings, Visual Alarms, Text Telephones and 

Using ADA Accessibility Guidelines, p. 77 

Proposed guidelines for childrens' facilities, p. 76 

Association on Higher Education and Disability, RO. Box 21192, Columbus, OH 43221 
Title by Title: The ADA and Its Impact on Postsecondary Education, p. 60 

Building Owners and Managers Association, (800) 426-6292 
The ADA Answer Book, p. 65 
The ADA Video, p. 65 

The Caption Company, 1730 Sands Place, Marietta, Georgia 30067; (770) 952-4019 
captioning, p. 74 

Council of Better Business Bureaus' Foundation, Dept. 024, Washington, DC 200042-0024; 
(703) 247-3656 

"Access Equals Opportunity" industry-specific ADA compliance guides, p. 65 



81 



Department of Housing and Urban Development 

Entitlement Communities Division, (202) 708-1577 

Community Development Block Grant program, p. 56 

Department of Labor 

Wage and Hour Division offices in Ohio: Cincinnati, (51 3) 684-2908; Cleveland, (216) 522-3892/ 
3893; Columbus, (614) 469-5677. 

Help with Family and Medical Leave Act, p. 51 

Department of Justice 

Civil Rights Division, Box 661 1 8, Washington, DC 20035-61 1 8 
Electronic bulletin board: download by computer modem (202) 514-6193 
Internet address: http://www.usdoj.gov/crt/ada/adahom1 .htm 

ADA Information Line: (800) 514-0301 voice or (800) 514-0383 TTY. This automated system oper- 
ates 24 hours a day to offer summaries of statutes and regulations and take orders for publications. 
Operators are available to answer ADA questions from 10 a.m. -6 p.m. Eastern Time MTWF, 1-6 
p.m. Thursdays. 

ADA regulations and technical assistance materials, p. 20, 27 

Disability Rights Education and Defense Fund, Inc., 2212 Sixth St., Berkeley, CA 94710; (510) 
644-2555 voice, (510) 841-8645 fax. For ADA information: (800) 466-4232 voice 

Elevator World Inc., P.O Box 6507, Mobile, AL 36660; (334) 479-4514, ext. 119 

ADA and Vertical Transportation: A Handbook on Accessibility Regulation for Elevators, 
Wheelchair Lifts and Escalators, p. 77 

Equal Employment Opportunity Commission, 1801 L St., NW, Rm. 9024, Washington, DC 20507 
Office of Legal Counsel's Attorney of the Day: (202) 663-4691 

EEOC Cleveland District Office, Tower City - Skylight Office Tower, 1660 W. Second St., Room 
850, Cleveland, OH 44113-1454; (800) 669-4000 

How to initiate a complaint, p. 41 
For nearest field office, call (800) 669-4000 voice or (800) 669-6820 TTY 

To reach the EEOC Publications Information Center: RO. Box 12549, Cincinnati, OH 45212; (800) 
669-3362 voice, (800) 800-3302 TTY 

"EEOC is the Law" poster, p. 20 

Enforcement Guidance: Workers' Compensation and the ADA, p. 47 

EEOC's Title I Technical Assistance Manual, p. 20 

Governor's Council on People with Disabilities, 400 E. Campus View Blvd., Columbus, OH 
43235-4604; (800) 282-4536, ext. 1391 voice/TTY 
/Access for All handbook, p. 77 

Institute for a Drug-Free Workplace, 1301 K St. NW, East Tower, Suite 1010, Washington, DC 
20005-3307; (202) 842-7400 

Drug and Alcohol Abuse Prevention and the ADA: An Employer's Guide, p. 38 

Internal Revenue Service 

Publications, (800) 829-3676 

#907 - Tax Highlights for Persons with Disabilities (general), p. 13 

#535 - Business Expenses (architectural/transportation tax deduction), p. 13 

#334 - Tax Guide for Small Business (small business tax credit), p. 13 

Job Accommodation Network, RO. Box 6080, Morgantown, WV 26506; (800) 526-7234 or (800) 
ADA-WORK, both voice/TTY, p. 25 
Internet address: http://janweb.icdi.wvu.edu 



82 



LRP Publications, Dept. 400, 747 Dresher Rd., Suite 500, P.O. Box 980, Horsham, PA 19044- 
0980; (215) 784-0860 voice or (215) 784-9639 fax. 

The ADA Cost Catalog for Access Modifications, p. 78 

Milt Wright & Associates, Inc., 9455 De Soto Ave, Chatworth, CA 91 31 1 ; (800) 626-3939 

The Workers' Compensation-ADA Connection: Supervisory Tools for Workers' Compensation 
Cost Containment That Reduce ADA Liability, p. 47 

National Federation of the Blind, 1800 Johnson St., Baltimore, MD 21230; (410) 659-931 4For 
ADA Title II or III information, call the number above. For Title I (employment) information, call 
Job Opportunities for the Blind at (800) 638-7518 

National Organization on Disability, 910 16th St. NW, Suite 600, Washington, DC 20006; (202) 
293-5960 voice, (202) 293-5968 TTY 
Employer survey, p. 12 

National Restaurant Association, 1200 17th St., NW, Washington, DC 20036-3097; (202) 331- 
5900 voice, (202) 331-2429 fax 

Model Position Descriptions for the Food Service Industry, p. 20 

To reach the Ohio Restaurant Association, call (800) 282-9049 

Ohio Bureau of Employment Services, WOTC Unit, 145 S. Front St., RO. Box 1618, Columbus, 
OH 43216-1618; (614) 644-7206 

Work Opportunities Tax Credit information, p. 1 3 

Ohio Commission on Dispute Resolution and Conflict Management, 77 S. High St., 24th floor, 
Columbus, OH 43266; (614) 752-9595 

Ohio Directory of Non-Profit Dispute Resolution Organizations, p. 42 

Ohio Rehabilitation Services Commission, 400 E. Campus View Blvd., Columbus, OH 43235- 
4604; (800) 282-4536 voice/TTY 

Accessibility Bits, p. 77 

NewsNet bimonthly magazine with "ADA Quarterly" supplements 

Ohio Township Association, (614) 863-0045 

The Americans with Disabilities Act: A Compliance Workbook for Small Communities, p. 56 

President's Committee on Employment of People with Disabilities 

1331 F St. NW, 3rd fir., Washington, DC 20004; (202) 376-6200 voice or 376-6205 TTY 
Ask for Randy Chaifkan for information on these publications: 

Work-site Accommodations for People with HIV, p. 30 

Reasonable Accommodations for Persons with HIV Illness, p. 30 

Southwestern Bell Telephone's Home Office Service 

Christie LaPoint, (314) 235-3910 

Telecommuting Program Development Handbook, p. 27 



83 



Newsletters 

/Access Currents is published bimonthly, following each meeting of the Access Board (U.S. Archi- 
tectural and Transportation Barriers Compliance Board), and is available free of charge upon re- 
quest in regular print, large print and Braille, on cassette or computer disk, and as e-mail. Contact: 
Access Board Office of Public Affairs; (202) 272-5434 (press 739 at voice mail), (202) 272-5449 
TTY, or e-mail: Ola@access-board.gov. 

The ADA Compliance Cuide newsletter is published monthly by Thompson Publishing Group. The 
annual subscription rate is $287 and includes a two-volume set of ADA compliance manuals 
(newsletter not available separately). Contact: Thompson Publishing Group; (800) 677-3789. 

BNA's Americans witli Disabilities Act Manual is published on the second and fourth Thursday of 
the month by the Bureau of National Affairs, Inc. Cost is $172 per year for the newsletter only, 
$434 for newsletter and accompanying ADA manuals and updates. BNA's Employment Discrimi- 
nation Report is published weekly. A one-year subscription is $802 and includes accompanying 
binders. For either publication, contact: Bureau of National Affairs, Inc., customer service, (800) 
372-1033. 

Disability Compliance Bulletin is published biweekly by LRP Publications. Annual subscription 
rate is $167. Successful lob Accommodation Strategies is published monthly by LRP Publications. 
Subscription rate is $1 30 per year. Call LRP at (215) 784-0860. 

Employment In the Mainstream is published bimonthly by Mainstream, Inc. For subcription infor- 
mation, call: (301) 654-2400, ext. 305 voice, ext. 302 TTY or reach them through e-mail at: 
Mainstrm@AOL.COM. 

Region V News is published quarterly by the Great Lakes Disability and Business Technical Center. 
For a free subscription, call (800) 949-4ADA voice/TTY 

Report on Disability Programs is published biweekly by Business Publishers, Inc. Subscription rate 
is $297 per year. Contact customer service at (800) 274-6737 or (301) 589-8493 fax. 



84 




85 



r 



C 

c 

Absenteeism see attendance r 

Accessibility (also see architectural barriers, program access) 49, 55, 66, 70, 71 , 77 r- 

Architectural and Transportation Barriers Compliance Board (Access Board) 77 , 81 ^ 

ADA Accessibility Guidelines (ADAAG) 63, 65, 70, 76, 77 , 81 

Accommodations see reasonable accommodation or public accommodation 

ADA-OHIO 12, 36, 81 

Addiction see drug abuse 

AIDS (acquired immune deficiency syndrome) see HIV 

Alcoholism 36, 37, 38, 39 

Alternative dispute resolution see mediation 

American Foundation for the Blind 65, 81 

Architectural barriers 13, 63, 71, 72, 77 

Arrests 59 

Assistive devices 23 

Assistive I istening devices/systems 70, 74 

Association with a person with a disability 21 

Attendance 16, 26 

Attitudes 5, 12, 32, 40, 47, 57, 67 

Auxiliary aids and services (also see program access) 63, 66, 73, 75 

Better Business Bureau 65 

Blindness 65, 71, 75 

Braille 71, 75 

Building Owners and Managers Association 65, 81 

Captioning 65, 74, 81 

Churches 62, 65 

Collective bargaining (also see unions) 1 9, 28 

Colleges 59, 60 

Community Development Block Grant (CDBG) 55, 56, 82 

Conditional job offer 15 

Condominiums 64 

Conduct 36, 37, 39 

Conferences 66 

Confidentiality 16, 23, 48, 52 

reasonable accommodation 23, 26 

Coverage see employer, employee 

Curb cuts 56 

Deafness 34,72 

access to health care 63 

Department of Labor (DOL) 51,82 

Department of Justice (DOJ) 20, 27, 82 

Direct threat 24, 34, 3 7, 40 

HIV/AIDS 36 

Disability 

definition 5, 17, 50 

qualified person with a 6 

Disabled Access Cred it 10,13 

Disclosure 26 

Dog, guide 29,66 

Drug abuse 17, 37, 38, 39 

Drug testing 16, 1 7 



86 



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Equal Employment Opportunity Commission (EEOC) 16, 17, 18, 20, 34, 41, 46, 47, 48, 82 

Elevators 70, 77 

Emergency 27, 70 

Employee, definition 5 

Employer 8 

definition 5 

overseas 9 

Employment agency 9 

Enforcement 41,51 

Essential functions 6, 10, 18, 21, 22, 26, 46 

Family and Medical Leave Act (FMLA) 50, 51 

Federal Emergency Management Agency (FEMA) 27 

Firefighters 28, 35, 59 

Food handling 36 

Fragrances 60 

Good faith effort 24, 29, 43, 48 

Government 54, 55 

Governor's Council on People with Disabilities 77, 82 

FHard of hearing 71, 73 

Hearing impairment see deafness or hard of hearing 

HIV (human immunodeficiency virus) 30, 36, 59, 67 

1 1 legal drugs see drug testi ng 

Impairment 

def in ition of 5 

having a record of 5 

regarded as havi ng 5 

temporary 6,7 

Injured workers (also see workers' compensation) 47 

Insurance 48 

Interpreter, sign language 9, 13, 63, 66, 72, 75 

Interviewing 9, 15 

Job Accommodation Network (JAN) 23, 25, 82 

Job descriptions 18, 19, 20, 22 

Job related 17, 46, 51 

Job Training Partnership Act (JTPA) 14 

Landlord 64 

Large print 76 

Lawsuit see enforcement 

Liability of supervisor 41 

Light duty 29, 47 

Major life activities 5, 6, 7 

Marginal functions 6, 20, 22, 23, 26 

Mediation 42 

Medical exams 15, 16, 46, 51 

Pre-employment medical exams and inquiries 16, 17, 29 

Medical inquiries see Medical Exams 



87 



41 






Mental illness 28, 30, 37, 40 

Mental retardation 14 

National Employment and Training Program (NETP) 14, 81 

National Labor Relations Board (NLRB) 27 

National Institute on Disabilities and Rehabilitation Research (NIDRR) 78 

Office for Civil Rights 29 

Ohio Rehabilitation Services Commission (RSC) 1 , 80 

Overseas employment 9 

Parking 77 

Perceived disability see disability, definition 

Physical impairment, definition 5 

Pre-employment medical exams and inquiries 16, 17 

President's Committee on Employment of People with Disabilities (PCEPD) 25, 30, 83 

Production standards 18, 19 

Program access 54,56,71 

Psychiatric disability see mental illness 

Public accommodation 62, 63, 64, 65, 66, 73, 75 

Qualified person with a disability 6, 46 

Readily achievable 62, 63 

Reasonable accommodation 9, 21, 22, 25, 28, 30, 31, 37, 38, 40, 49 

confidentiality 23, 26 

direct threat '. 24, 34, 37, 40 

employer choice 24 

Family and Medical Leave Act (FMLA) 50, 51 

good faith effort 24, 29, 43, 48 

reassignment 28 

sample policy 22 

undue hardship 17, 21, 24, 26, 27, 28, 52 

workers' compensation 46 

Record of an impairment see disability, definition 

Rec ru i tment 9 

Regarded as having a disability see disability, definition 

Relationship with a person with a disability 21, 50, 52 

Religious organizations see churches 

Reti rement benefits 52 

Retroactive 6 

Retrofitting 78 

Safety see direct threat 

Sears, Roebuck and Co 31 

Self-evaluation 55, 56 

Sick leave 16, 24, 26, 50 

Sign language see interpreter 

Signage 77 

Students see col leges 

Substantial limitation 5, 6, 7 

Substance abuse (also see alcoholism and drug abuse) 38 



88 



Tard i ness 37 

Targeted Jobs Tax Credit (TJTC) see Work Oppotunities Tax Credit 

Tax incentive 10, 1 3 

Telecommunications Reform Act 78 

Telephones 70, 73 

Temporary impairments 6, 7, 51 

Tenant 64 

Tours 56, 66 

Towns/townships 56 

Transition plan 55, 56 

Undue burden 35, 54, 76 

Undue hardship 17, 21, 24, 26, 27, 28, 52 

Unfunded mandate 55 

Unions 23, 26 

Violence 37, 40 

Visual impairment 30, 65, 71, 75 

Volunteer 59 

Wellness plans \ 48 

Workers' compensation 11, 46, 47 , 48 

Work Opportunity Tax Credit (WOTC) 13, 83 



89 



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About the editors 




David Cameron has worked for the State of 
Ohio for more than 25 years, with most of that 
time spent at the Rehabilitation Services Com- 
mission. He started as a vocational rehabilita- 
tion counselor, helping Ohioans with visual 
impairments prepare for jobs. Since 1991, he 
has been RSC's ADA coordinator. He pro- 
vides technical assistance on the Americans 
with Disabilities Act to the public through 
presentations and articles, as well as tele- 
phone and mail correspondence, and serves 
on the board of ADA-OHIO. He is conversant 
on all titles of the ADA and on accessibility. 

Because of limited joint mobility due to 
rheumatoid arthritis, Cameron requires two 
physical accommodations in his RSC office, 
which is pictured at left. An adjustable, split 
keyboard allows for the most comfortable typ- 
ing position and a standard office chair com- 
bined with a lifting mechanism in the base 
helps Cameron rise from a seated position. 
These accommodations alleviate undue stress 
on joints. 



Trudy Sharp writes, edits and photographs 
stories for the RSC NewsNet magazine, which 
promotes awareness of disability issues and 
employment of people with disabilities. She 
has been with the agency's Office of Public 
Information since 1989. In 1993, with 
Cameron's assistance, she created the "ADA 
Quarterly," a supplement to NewsNet de- 
voted to clarifying the Americans with Dis- 
abilities Act. "Unfortunately," quips Sharp, 
"working with Cameron has been deemed an 
essential function of my job for which there is 
no reasonable accommodationl" 




90 



KF3739 Cameron, David and Sharp, Trudy F. 
.C3 A SOURCEBOOK ON THE 

1997 AMERICANS WITH 

DISABILITIES ACT 



Oavid and Shaip, Trudy F. 
...coirANSWlTH 



AMERICANS WITH 
DrsABlUTlBSACr 




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The mission of the Ohio Rehabilitation Services Commission, 

a state/federal program, is to work in partnership with people with disabilities 

to assist them to achieve full community participation 

through employment and independent living opportunities. 



Ohio Rehabilitation Services Commission 

400 E. Campus View Blvd., Columbus, OH 43235-4604 

Toll-free in Ohio (800) 282-4536 voice/TTY 



Published by the RSC Office of Public Information 



TOTAL COPIES PRINTED: 10,000 UNIT COST $2.71 



January 1997 



PUBLICATION DATE: 1/97 



BULK RATE 


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OHIO 


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